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San Juan Capistrano, CA
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TERMS OF SERVICE

Welcome to www.OspreyData.com. These Terms of Service contain the terms and conditions that govern all use of our Web Site (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Web Site (collectively, the “OspreyData Services”).

The OspreyData Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy at www.OspreyData.com/privacy), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Web Site or made available to you on or through the OspreyData Services (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and OspreyData (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE OSPREYDATA SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE THE OSPREYDATA SERVICES.

OspreyData may, in its sole discretion, elect to suspend or terminate access to, or use of the OspreyData Services to anyone who violates these Terms.

If you register for a free trial of the OspreyData Services, the applicable provisions of these Terms will govern that free trial.

1. DEFINITIONS

Definitions
Client a natural or legal person who has accepted these Terms with OspreyData;
Client Data files and any other digital data and information, which is subjected to the OspreyData Services or otherwise inserted to the System by the Client (including the specific Users, persons, Organizations, partners, associated with the Client);
Content any data and information available through OspreyData Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Guidelines additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Web Site or otherwise made available on or through the OspreyData Services;
Organization legal persons (such as companies) and other entities that are partners or potential partners of the Client;
OspreyData Materials the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the OspreyData Services;
OspreyData Services the Web Site, System, Content, and all contentavailable on or through the Web Site;
OspreyData OspreyData Inc., a corporation established under the laws of the State of Delaware (United States of America).
Special Terms any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms;
System the integrated cloud computing solution for providing the OspreyData Services, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
User a natural person granted with the Authorization to use access the Web Site
Web Site the compilation of all web documents (including images, php and html files) made available via www.OspreyData.com or its sub domains or domains with identical names under other top domains and owned by OspreyData.

2. AUTHORITY TO ENTER INTO THESE TERMS WITH OSPREYDATA

The use of the OspreyData Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.

The Terms are accepted upon the moment of gaining access to such services.

You may not, without OspreyData’s prior written consent, access the OspreyData Services (i) for production purposes, (ii) if you are a competitor of OspreyData, (iii) to monitor the availability, performance or functionality of the OspreyData Services or (iv) for other benchmarking or competitive purposes.

Once accepted, these Terms remain effective until terminated as provided for herein.

3. MODIFICATIONS TO TERMS

OspreyData reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the OspreyData Services. Please check these Terms periodically for changes. Your continued use of the OspreyData Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the OspreyData Services, or (ii) 30 days from posting of such modified Terms on or through the Web Site. Notwithstanding the foregoing, the resolution of any dispute that arises between you and OspreyData will be governed by the Terms in effect at the time such dispute arose.

4. OUR RESPONSIBILITIES

4.1. Provision of OspreyData Services. OspreyData will (a) make the OspreyData Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the OspreyData Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the OspreyData Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which OspreyData shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond OspreyData’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.

4.2. Protection of Client Data. OspreyData will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by OspreyData personnel except (a) to provide the OspreyData Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.

5. [Reserved]

6. [Reserved]

7. [Reserved]

8. SERVICES

8.1 Use of the OspreyData Services. Subject to these Terms, and the payment of the OspreyData grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to access the Web Site.

9. [Reserved]

10. RESTRICTIONS

10.1 Prohibited Activities. Client and its authorized Users may use the Web Site and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:

  1. use the Web Site or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
  2. copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Web Site or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that OspreyData is not permitted by that applicable law to exclude or limit the foregoing rights;
  3. use the Web Site or any part or element thereof unless it has agreed to these Terms.

10.2 Certain Uses Require OspreyData Consent. The Client or any User may not, without OspreyData’s prior express written consent (e-mail, fax, Skype, etc.):

  1. sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Web Site available in whole or in part to any third persons, unless such third person is another authorized User of the same Client;
  2. use the Web Site or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
  3. use the Web Site or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by OspreyData;
  4. PRIVACY

OspreyData takes the privacy of its Clients and Users very seriously. OspreyData’s Privacy Policy at www.OspreyData.com/privacy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs OspreyData’s collection, use, and disclosure of Client’s or User’s personal information.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 OspreyData’s Intellectual Property Rights in the OspreyData Services. The Web Site OspreyData Materials, OspreyData trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by OspreyData and its third party vendors and hosting partners. OspreyData Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. OspreyData, its affiliates and licensors retains all right, title and interest in such OspreyData Services, OspreyData Materials, OspreyData trade names and trademarks, and any parts or elements. Your use of the OspreyData Services and OspreyData Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the OspreyData Materials is strictly prohibited unless you have received the express prior written permission from OspreyData or the otherwise applicable rights holder. OspreyData reserves all rights to the OspreyData Services, OspreyData Materials and OspreyData trade names and trademarks not expressly granted in the Terms.

12.2 Content Owned by OspreyData. Subject to these Terms and the payment of the applicable service Fee, OspreyData grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the OspreyData Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the OspreyData Services or as otherwise permitted by applicable law.

12.3 Feedback. If Client or a User provides OspreyDatas with any comments, bug reports, feedback, or modifications for the OspreyData Services (“Feedback”), OspreyData shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the OspreyData Services. Client or User (as applicable) hereby grants OspreyData a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. OspreyData shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if OspreyData deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.

13. THIRD-PARTY SITES, PRODUCTS AND SERVICES

The Web Site may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, OspreyData does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, OspreyData makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.

Any content referred to as community provided is provided by third parties and not developed or maintained by OspreyData. By using any community marked code or libraries in your software development, you acknowledge and agree that OspreyData is not in any way responsible for the performance or damages caused by such community provided code or library.

14. DISCLAIMERS; NO WARRANTY

UNLESS OTHERWISE EXPRESSLY STATED BY OSPREYDATA, THE OSPREYDATA SERVICES, OSPREYDATA MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OSPREYDATA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OSPREYDATA AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.

UNLESS OTHERWISE EXPRESSLY STATED BY OSPREYDATA, OSPREYDATA AND ITS AFFILIATES DO NOT WARRANT THAT THE OSPREYDATA SERVICES AND ANY CONTENT, CLIENT DATA, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OSPREYDATA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE OSPREYDATA SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OSPREYDATA SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

UNLESS OTHERWISE EXPRESSLY STATED BY OSPREYDATA, OSPREYDATA AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE OSPREYDATA SERVICES, OSPREYDATA MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

15. INDEMNIFICATION

You agree to defend, indemnify and hold harmless OspreyData and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the OspreyData Services, OspreyData Materials, representations made to OspreyData, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. OspreyData reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify OspreyData, and you agree to cooperate with such defense of these claims.

16. LIMITATION OF LIABILITY

16.1 No Liability: OspreyData shall not be liable to the Client or User for any consequences resulting from:

  1. any modifications in these Terms, the OspreyData Services, OspreyData Material, or any part or element thereof, including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the OspreyData Services or OspreyData Material;
  2. deletion of, corruption of, or failure to store any Client Data;
  3. use of Client Data by the Client or any Users;
  4. any disclosure, loss or unauthorized use of the login credentials of Client or any authorized User due to Client’s failure to keep them confidential;
  5. the Client’s use of t the OspreyData Services by means of browsers other than those accepted or supported by OspreyData;
  6. the application of any remedies against the Client or authorized Users by OspreyData, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the OspreyData Services or any part or element thereof;
  7. the differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the OspreyData Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
  8. OspreyData’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.

In addition, OspreyData and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to:

  1. provide OspreyData with accurate information about the Client or Users;
  2. provide any products or services which it has agreed to provide to such a person or Organization (whether such failure arises as a result of OspreyData’s negligence, breach if these Terms or otherwise);
  3. ensure the lawfulness of the Client Data;
  4. obtain the necessary rights to use the Client Data; or
  5. abide by any of the restrictions described in these Terms.

16.2 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OSPREYDATA AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE OSPREYDATA SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.

16.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

17. TERMINATION OF THESE TERMS

17.1 For Convenience. These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:

  1. by the Client any time by clicking the cancellation link on the Web Site;
  2. by OspreyData upon decision to end provision of the OspreyData Services; or
  3. immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.

17.2 For Default. These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:

  1. by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
  2. immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights] and 15 [Indemnification] of these Terms.

17.3 Effect of Termination. Upon termination of these Terms,

  1. Client must:
    • stop using and prevent the further usage of the OspreyData Services, including, without limitation, the Web Site; and
    • discharge any liability incurred by the Client before under these Terms prior to their termination; and
  2. The following provisions shall survive the termination of these Terms: Sections 1, 10, 11, 12, 14, 15, 16, 18 and 19.

17.4 Remedies.

If OspreyData terminates these Terms as a result of an uncured breach by a Client or User, OspreyData is entitled to use the same or similar remedies against any other persons who use the OspreyData Services in conflict with these Terms. Notwithstanding the foregoing, OspreyData may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the OspreyData Services.

If OspreyData has reasonable grounds to believe that the Client’s or User’s use of the OspreyData Services may harm any third persons, OspreyData has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.

18. WHO YOU ARE CONTRACTING WITH

18.1 General. You are contracting with OspreyData Inc. a Delaware corporation.

18.2 Governing Law and Jurisdiction.

Any dispute arising from or relating to the subject matter of these Terms of Service shall be finally settled by arbitration in San Juan Capistrano, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without reference to any conflict of law principles. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in San Francisco, California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Service, including without limitation, this section.

If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.

Use of the OspreyData Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.

Notwithstanding the foregoing, you and OspreyData agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.

19. GENERAL PROVISIONS

19.1 Relationship of the Parties. The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and OspreyData, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.

19.2 Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.

19.3 Entire Agreement. These Terms are the entire agreement between Client and OspreyData regarding Client’s use of the OspreyData Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

19.4 Assignment. Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without OspreyData’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.

19.5 No Waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.

19.6 Notices. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.

Last update: January 22, 2020