Terms of Service for
(Last Updated November 2021)
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. THEY GOVERN YOUR ACCESS TO AND USE OF THE ONTOLOGICS WEBSITE AND SERVICES. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE ONTOLOGICS WEBSITE OR SERVICES.
B. Updates to Terms of Service. We may update the Terms of Service from time to time by posting new versions on our website. We recommend that you check back regularly to learn about any updates. If you do not agree with anything in our Terms of Service or our additional policies or guidelines, including as we may update them, your sole remedy is to stop using the Services.
C. Relationship to Signed Orders or Subscriptions. If you or the entity you work for have entered into a signed order form, service order, subscription agreement, trial agreement or other ordering document that specifies your purchase of Services, pricing and related terms (a “Subscription Agreement”), that Subscription Agreement together with these Terms of Service governs your access to and use of the Services and supersedes any separate discussions or representations on this topic, including any separate terms you may propose in connection with a purchase order or otherwise. The Subscription Agreement will be deemed to apply in case of any conflict between these Terms of Service and the Subscription Agreement.
D. Subscriber Accounts; Payment; Taxes.
Account Security. You are responsible for keeping your account login information and password confidential and secure. You agree not to share your account login information or password with anyone else, and that you will not let anyone else use your subscription to the Services. You are solely responsible for all use of the Services via your account. You will notify us immediately, if you know of or suspect any unauthorized use of your password or account. We have no responsibility or liability for any loss, damage or other liability arising from your failure to comply with this paragraph or related to any unauthorized access to or use of your account or related credentials. We reserve the right in our sole discretion to disable, suspend or terminate your account or to change your login credentials at any time.
Payment. You will pay us the fees and charges set out in the applicable Subscription Agreement (the “Fees”) within thirty (30) days of date of the applicable invoice. The Fees will be payable in advance and, except as otherwise specifically provided in the Subscription Agreement, the Fees are non-cancellable and non-refundable. If you fail to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies we may have under this Agreement or by matter of law: (i) all remaining Fees relating to Services under the same Subscription Agreement shall become due and payable immediately; (ii) we reserve the right to suspend your access to the Services until such amounts are paid in full, (iii) we will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until you pay all amounts due; and (iv) we will have the right to recover all attorneys’ fees and other reasonable costs incurred by us in recovering any unpaid Fees.
Taxes. The Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder or under a Subscription Agreement (excluding taxes based on our net income or property) unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Compliance Audit Right. We or our representatives may audit your compliance with your Subscription Agreement and these Terms of Service upon reasonable advance written notice and subject to commercially reasonable confidentiality terms. We will be responsible for the costs we incur to carry out such an audit unless it identifies a material breach by you of the Terms of Service or Subscription Agreement, in which case, in addition to any other rights or remedies we may have under this Agreement or by matter of law, you agree to promptly reimburse us for our reasonable and documented costs for the audit.
E. Use of the Services; Limitations on Use.
Content and Software. Subject to the Terms of Service and the limits related to your Services purchase(s) as set forth in your Subscription Agreement, and only for your internal business purposes, you may access, use and download the graphics, visualizations, charts, reports, analyses, data and other content (together, “Content”) provided through the Services, and you may access, download and use any software we provide to end users to facilitate use of the Services or Content. Your downloading and use of any Content or software is subject to all applicable laws, including U.S. export laws, and you are solely responsible for ensuring your actions comply with them. Downloading or using any software is at your own risk. Use of the Services may require you to download and use third party technologies, including a web browser, and Ontologics has no responsibility or liability with respect to any third party technologies or your compliance with terms and conditions applicable to them.
Subject to the Terms of Service and the limits related to your Services purchase(s) as set forth in your Subscription Agreement, you may extract, summarize and otherwise integrate Content in your own analyses, reports and similar work product that you create as part of your internal business activities, and you may also distribute such work product on a limited and ad hoc basis to your customers and clients for their use, and without any right to redistribute, as long as the Content you integrate into your work product does not have independent commercial value or otherwise provide the basis for an offering that competes with the Services. You agree that you will not make available any subscription service or other programmatic offering that incorporates Content in your work product. You will include an attribution to Ontologics, Inc. in connection with each use you make of any Content in your work product, and you will comply with any additional guidelines and policies we may communicate from time to time (including via our website) regarding Content attributions.
Further Limitations on Use. Your right to access and use the Services, Content and associated software is subject to your compliance with the following further restrictions. You will not: (i) rent, lease, resell, sublicense, assign, or otherwise transfer your right to access or use the Services to any third party; (ii) use or make the Services available for use in any service bureau, time-sharing, hosted application or any other manner that would directly or indirectly provide third parties an ability to use or direct your use of the Services; (iv) use any robot, spider, data mining or other technology or method to access, copy, download, or otherwise acquire all or any part of the Content or Services except to the extent the Terms of Service expressly authorize you to engage in limited downloading and use of Content for your internal business purposes; (v) remove or alter any proprietary notices or labels on or in the Content, Services or any associated software; (vi) access or use the Services in connection with designing or developing any service or product that would compete in whole or in part with the Services; (vii) use the Services for competitive benchmarking or disclose any performance results, competitive analysis or other information regarding the functionality, performance or design of the Services to any third party; (vii) circumvent, seek to circumvent or enable any third party to circumvent any limitations implemented by the Services regarding the volume or frequency of requests for Content or any other procedures or outputs; (ix) introduce any malicious or privacy-endangering code or other technology into the Services or underlying systems or engage in any activity that interferes with or disrupts the Services or their availability or use by anyone else; or (x) use any Content accessed via the Services for illegal purposes, including to knowingly infringe or misuse any intellectual property of a third party.
F. Ownership; Reservations of Rights
The Services, Content and all software, technologies, algorithms, data, design elements and other assets we make available via the Services or that we use to operate the Services (our “Systems”), and any improvements to any of the foregoing, including any improvements you may recommend to us or that we develop based on your use of the Services, are owned by Ontologics or its licensors and we reserve all right, title and interest in them. Nothing in the Terms of Service will be interpreted to provide, including by implication, estoppel or otherwise, any license or other rights other than those expressly specified above.
The Services and Content may include technologies, data and other materials and functionality provided by third parties. We may be required from time to time to pass through additional terms from third parties to you regarding such items, and to update such third party pass-through terms. Such third party pass-through terms will be included or referenced in updates to the Terms of Service or via notices within applicable parts of the Services.
Ontologics and its licensors own all trademarks and trade dress associated with the Services, including color combinations, logos, button shapes, and other graphical elements, and no license to use any such trademarks or trade dress is provided under the Terms of Service. Other trademarks used in connection with the Services are the property of their respective owners.
You will not (i) modify, reproduce or otherwise create derivatives of any part of the Services or Systems; or (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services or Systems, except that this restriction will not apply to the limited extent restrictions on reverse engineering are prohibited by applicable law.
G. Term; Termination. Subscriptions to the Services commence on the date, and are for a period, as set out in the applicable Subscription Agreement (“Term”). Upon expiration of the Term, unless otherwise stated on an applicable Subscription Agreement, the Services and your obligation to pay Fees for them will automatically renew for additional terms of 12 months (each a “Renewal Term”), unless and until either party gives the other written notice of non- renewal at least thirty (30) days prior to the end of the then-current Term or Renewal Term. We reserve the right to increase the Fees for each Renewal Term, subject to our having provided you with 60 days prior written notice of any such Fee increase. Without limiting any other rights and remedies under these Terms of Service, either party may terminate a Subscription Agreement by written notice to the other party in the event that (i) such other party materially breaches the Subscription Agreement or these Terms of Service and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
We have the right to suspend or terminate your account and otherwise block your access to the Services in whole or in part at any time, with or without notice, in order to protect the Services or if you materially violate the Terms of Service or your Subscription Agreement has terminated. You are responsible for retaining separate copies of any Content you have downloaded in accordance with the Terms of Service. We will not have any liability if we suspend or terminate your account and/or block your access to the Services. All provisions of the Terms of Service that by their nature should survive termination will do so, including without limitation terms concerning our intellectual property rights, disclaimers, indemnity and limitations of liability.
H. Other Terms
Compliance with Applicable Law. Each of us agrees to comply with all applicable laws in connection with operation and use of the Services.
Claims of Copyright Infringement/DMCA Process. We value and respect the intellectual property rights of others, and we do not authorize the Services to be used for infringing purposes. If you believe your work has been reproduced in an infringing way on or through use of the Services, please notify our copyright agent in accordance with our Digital Millennium Copyright Act (“DMCA”) policy. Please note that our DMCA agent may share all information you submit through this process to the alleged infringer(s).
Confidentiality. Each party (as the “Recipient”) may, during the course of its provision and/or use of the Services, receive, have access to, and acquire knowledge from discussions with the other party (as the “Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, customers, vendors, penetration test results and other security information (“Confidential Information”). Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) are generally known to the public; (b) become generally known to the public, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient as shown by documents and other competent evidence in the Recipient’s possession. The Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of these Terms of Service, except with the Discloser’s prior written permission, or (ii) disclose or make the Discloser’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set out herein or are otherwise under similar binding obligations of confidentiality and have a “need to know” in order to carry out the purpose of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same or similar manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
Feedback. You hereby grant Ontologics, at no charge, the rights to use, disclose, reproduce, license, distribute and exercise all other rights in any comments or other input (“Feedback”) you provide to us regarding the Services or Content. Your feedback is entirely voluntary and is provided as-is and without any warranties. We own the statistical usage data derived from the operation of the Services and the performance results for the Services (“Usage Data”). For the avoidance of doubt, Usage Data shall exclude your Confidential Information. Nothing herein shall be construed as prohibiting us from utilizing the Usage Data to optimize and improve the Service or otherwise operate our business. Where your Usage Data is combined with Usage Data of other customers, all Usage Data shall be de-identified and presented in an anonymous and aggregate format so that such Usage Data will not disclose your identity to any third party.
Indemnity. You will indemnify and hold Ontologics and our officers, affiliates, successors, assigns, directors, agents and employees harmless from any and all costs and damages (including reasonable attorney fees and court costs) incurred in connection with any claim or demand made by any third party in connection with your use of any Content available via the Services or that, if true, would constitute a violation by you of the Terms of Service. This right of indemnity is in addition to all other remedies available to us with respect to any breach by you of the Terms of Service.
Warranties; Representations: Disclaimers; Limitations Of Liability.
Services Warranty. We warrant that during the Term: (i) the Services shall perform materially in accordance with the applicable specifications and documentation, (ii) we will use commercially reasonable efforts to make the Services available to you 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by you, a third party or a force majeure event (as defined in below)); (iii) we will employ then-current, industry-standard measures to test the Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Services, and (iv) we own or otherwise have sufficient rights in the Services to grant you the rights to use the Services granted herein. We will use commercially reasonable efforts to correct the non-conforming Services at no additional charge to you, and in the event we fail to successfully correct the Services within a reasonable time of receipt of written notice from you detailing the breach, then you shall be entitled to terminate the applicable Services and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service(s). The remedies set out in this section shall be your sole remedy and our sole liability for breach of these warranties. The warranties set out in this section shall apply only if the applicable Services have been utilized in accordance with these Terms of Service and the Subscription Agreement.
Mutual Representation and Warranties. Both parties represent and warrant that they: (i) have the necessary authority to enter into this Agreement; and (ii) will comply with all applicable laws and regulations in the provision or use (as applicable) of the Services.
To the maximum extent permitted by applicable law, and except as expressly set forth in these Terms of Service:
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE”, AND ONTOLOGICS DISCLAIMS ALL WARRANTIES (INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE) WITH RESPECT TO THE SERVICES AND CONTENT, AND YOUR USE OF THEM.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, YOU BEAR THE ENTIRE RISK OF USING THE SERVICES AND CONTENT. ONTOLOGICS DOES NOT MAKE ANY GUARANTEES REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, SECURITY, SAFETY, AVAILABILITY OR INTEGRITY OF THE SERVICES OR CONTENT. ONTOLOGICS IS NOT RESPONSIBLE FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, CONTENT OR THE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION YOUR USE OF OR INABILITY TO USE THE SERVICES; ERRORS, BUGS OR OTHER INACCURACIES OF ANY KIND IN CONNECTION WITH THE SERVICES OR CONTENT; YOUR RELIANCE ON THE QUALITY, ACCURACY OR RELIABILITY OF ANY CONTENT. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT ONTOLOGICS DOES NOT PROVIDE ANY FINANCIAL OR LEGAL ADVICE OR OPINIONS IN CONNECTION WITH THE SERVICES OR CONTENT, INCLUDING WITH RESPECT TO VALUE, PATENTABILITY, VALIDITY OR INFRINGEMENT.
IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES IN CONNECTION WITH THE SERVICES OR CONTENT, YOU AGREE THAT YOUR EXCLUSIVE REMEDY IS TO RECOVER, FROM ONTOLOGICS, DIRECT DAMAGES OF UP TO US$100.00. YOU ARE NOT ENTITLED TO RECOVER ANY OTHER DAMAGES OR LOSSES, INCLUDING DIRECT, CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE. THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOESN’T FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE LIMITATIONS AND EXCLUSIONS APPLY TO ANY SUBJECT MATTER OR ANY CLAIMS RELATED TO THE TERMS OF SERVICE OR THE SERVICES OR CONTENT.
Support. We will provide technical support for the Services during regular business hours (Pacific Time Zone) in accordance with our then-current standard service level commitments and practices. Any support or professional services that we may provide in connection with the Services are subject to the disclaimers and limitations of liability set forth in the Terms of Service.
Force Majeure. Neither of us will be liable for a failure to perform any obligation under the Terms of Service to the extent such failure is caused by a force majeure event, which term refers to acts of God, natural disasters, war, civil disturbance, strike, and other causes beyond a party’s reasonable control. Obligations not performed because of a force majeure event will be performed as soon as reasonably possible after the force majeure event ceases to prevent their performance.
Publicity. We may use your name and logo as part of a list of customers and may refer to you as a user of our Services in our advertising and marketing activities.
Assignment. You may not assign or transfer the Terms of Service or your rights under them to anyone else, including by merger, acquisition or operation of law, without the prior written consent of Ontologics. We may assign or transfer the Terms of Service as part of a sale, reorganization or other transaction involving our business (in whole or in part) and we will notify you via the website or otherwise in the event of such an occurrence.
Waiver and Severability; Construction. Failure to exercise any rights or remedy under the Terms of Service will not constitute a waiver or forfeiture of such rights. If any provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the provisions will remain in full force and effect. The section and paragraph headings in the Terms of Service are for convenience and will not be used to interpret them. Unless otherwise specified, the term “including” and similar terms will be interpreted to mean “including without limitation.”
Governing Law; Jurisdiction; Venue. The laws of the State of Arizona govern these Terms and your use of the Service. If federal jurisdiction exists, each of us consents to exclusive jurisdiction and venue in the federal courts seated in Phoenix, Arizona. If not, each of us consents to exclusive jurisdiction and venue in the Arizona state courts seated in Phoenix, Arizona. In case of a dispute between us, the non-prevailing party will pay all costs and expenses, including reasonable attorneys’ fees, associated with resolving the dispute.