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These Enterprise Cloud Services Terms (the “Standard Terms”) is entered into by and between Oak9, Inc., with offices at 444 N Michigan Ave, Suite 2800, Chicago IL 60654 (“Oak9”), and the customer indicated on the Order Form (“Customer”), and is effective as of the Effective Date. Each of Oak9 and Customer are referred to herein as a “Party”, and collectively, as the “Parties”. Terms used but not defined herein shall have the meanings given to them in the Order Form.

  1. Service.
    (a) Access and Use. Subject to Customer’s full and ongoing compliance with the terms and conditions of this Agreement, Oak9 will make the software-as-a-service platform described on the Order Form (the “Service”) available to Customer’s employees and contractors (“Users”) during the Term. Oak9 grants to Customer a non-exclusive, non-transferable, non-sublicensable right to permit Customer’s Users to access and use the Service in accordance with the terms of this Agreement. Customer shall remain responsible for each User’s access and use of the Service as if such access or use were Customer’s own.
    (b) Service Guidelines. Except as expressly permitted hereunder, Customer shall not, and shall not permit any User or other third party to (i) interfere with the performance of the Service or the data contained therein; (ii) attempt to gain unauthorized access to the Service or the networks or systems related to the Service; (iii) interfere with another’s use of the Service; (iv) permit access to the Service by any third party; (v) use the Service or provide the Service to third parties in any service-bureau or similar capacity; (vi) modify, copy, or make derivative works based on the Service; (vii) disassemble, reverse engineer, or decompile the Service or any software applications associated with the Service; (viii) access the Service to build a competitive service or reproduce features of the Service; or (ix) disclose any User IDs, passwords, tokens, keys or other similar access credentials to the Service.
    (c) Customer Content. Customer hereby grants to Oak9 a worldwide, irrevocable, nonexclusive, non-transferable right to use, host, display, distribute and modify any content provided by or on behalf of Customer or its Users to Oak9 (“Customer Content”) to: (i) provide the Services and perform its obligations under this Agreement; (ii) to improve Oak9’s products and services; and (iii) to generate Usage Data. Customer warrants that it has secured all of the necessary rights for Customer to provide the Customer Content to Oak9 and for Oak9 to exercise the foregoing rights in order to provide the Services. Customer acknowledges that Customer Content does not include any aggregated, non-personally-identifiable data or other routines generated by Oak9 through any automated data analysis, processing or other normal operations of the Service (collectively, “Usage Data”). For the avoidance of doubt, as between the Parties, Oak9 owns all Usage Data and may use Usage Data without restriction. Oak9 may remove or restrict access to Customer Content, including if oak9 believes such data may violate applicable law, if the source of such data becomes unavailable, or if a third party brings or threatens legal action against Company or a third party
    (d) Service Specific Terms. Certain portions or features of the Service may be subject to additional service-specific terms located at www.oak9.io/terms, as may be updated from time to time (“Additional Terms”). The use of and access to the Service granted hereunder shall be subject to such Additional Terms.
    (e) Beta Services. Oak9 may make Service functionality available to Customer to try at its option at no additional charge which is designated un an Order Form as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar designation (“Beta Services’). Customer acknowledges and agrees that its use of Beta Services is subject to these Standard Terms, provided that notwithstanding anything to the contrary in this Agreement: (i) Oak9 may terminate Customer’s access to Beta Services in its sole discretion at any time, without liability to Customer; and (ii) the Beta Services are provided “AS-IS” without any warranty and Oak9 shall have no indemnification obligations nor liability of any type with respect to the Beta Services unless such exclusion is not enforceable under applicable law, in which case Oak9’s liability with respect to the Beta Services will not exceed $1,000.00.
  2. Reservation of Rights. Except for the limited rights expressly granted above, as between Oak9 and Customer, Oak9 owns and retains all rights, title and interest, including all intellectual property rights, in and to all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining to the Service (collectively, “Oak9 Technology”). All rights not expressly granted hereunder are reserved to Oak9.
  3. Customer Support. During the term of this Agreement, Oak9 will provide to Customer its standard email (support@oak9.io).
  4. Fees and Payment Terms.
    (a) Service Fees. Customer shall pay Oak9 the fees for the Services specified in the Order Form (“Service Fees”). Additional fees may apply to certain additional Service features and add-ons, as may be specified in the Order Form.
    (b) Payment Terms. Except as otherwise specified on an Order Form, Oak9 will invoice Customer for the Services Fees and other amounts owed hereunder annually in advance, and Customer shall pay all Service Fees within thirty (30) days after the date of Oak9’s invoice. All Service Fees and other fees due hereunder are exclusive of sales, value-added, use, and other taxes, all of which are Customer’s responsibility, except for Oak9’s income taxes. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.
  5. Confidentiality.
    (a) Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) in connection with this Agreement where such information should be reasonably understood, based on the nature of the information or the circumstances of its disclosure, to be proprietary or confidential. Without limiting the generality of the foregoing and notwithstanding any marking or failure to mark such items as confidential or proprietary, the Oak9 Technology and any test results, summaries, or analysis generated in connection with use of the Service hereunder, as well as any Usage Data, constitute Oak9’s Confidential Information. Confidential Information shall not include any information that: (i) was already known by the Receiving Party prior to disclosure; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully received from a third party without a duty of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
    (b) Non-Use and Non-Disclosure. The Receiving Party shall not (i) use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations under this Agreement, or (ii) disclose Confidential Information of the Disclosing Party to anyone other than its personnel (including employees, contractors, and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. In no event shall either Party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party solely to the extent required by law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s expense) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
  6. Feedback. Customer may, but is not obligated to, provide Oak9 with information, suggestions, or other feedback with respect to the Service or Oak9 Technology (“Feedback”). Customer hereby grants to Oak9 a worldwide, nonexclusive, perpetual, irrevocable, transferable, royalty-free, fully paid-up, sublicensable license to use and exploit such Feedback for any purpose without restriction.
  7. Representations and Warranties.
    (a) Mutual. Each Party represents and warrants to the other Party that it has all necessary power and authority to enter into this Agreement and to carry out its obligations hereunder, and that the execution and performance of this Agreement does not and will not conflict with or violate any law or its contractual or other obligations to any third party.
    (b) Oak9. Oak9 represents and warrants that it will provide the Service in a professional manner, consistent with applicable law and industry standards.
    (c) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 7, THE SERVICE IS PROVIDED “AS IS”, AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OAK9 HEREBY DISCLAIMS ALL OTHER WARRANTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, AND ALL CONTENT, INFORMATION, AND MATERIALS PROVIDED THEREWITH, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SATISFTACTORY QUALITY, TITLE, SECURITY OR INTEGRITY OF DATA, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
  8. Indemnification.
    (a) By Oak9. Oak9 may (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use (as authorized in this Agreement) of a Service during the Term constitutes a direct infringement of any intellectual property or proprietary rights of any third party (a “Claim”), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Oak9; provided that Customer provides Oak9 (i) prompt written notice of, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by Oak9 in connection with the defense or settlement of, any such Claim.
    (b) Additional Rights. If any such Claim is brought or threatened, Oak9 may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Service; (x) modify the Service to make it non-infringing; (y) replace the affected aspect of the Service with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Order Form related to the applicable Service or this Agreement.
    (c) Limitations. Notwithstanding the foregoing, Oak9 will have no liability to Customer (1) for any use of the Services in combination with software, products or services not provided by Oak9; to the extent that the Services would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Services in accordance with this Agreement; or (3) for any claims related to Customer Content.
    (d) Sole Remedy. The foregoing provisions of this Section 8 state the sole and exclusive liability of Oak9, and the sole and exclusive remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
    (e) By Customer. Notwithstanding anything to the contrary in Section 8, Customer will defend or, at its option, settle, any claim brought against Oak9 by a third party alleging that the use by or on behalf of Oak9 of the Customer Content and/or any Oak9 data obtained pursuant to a request from Customer in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws; provided, that Oak9 provides Customer with (1) prompt written notice of; (2) sole control over the defense and settlement of; and (3) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Customer will pay all damages finally awarded against Oak9 (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Oak9 may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer.
  9. Limitation of Liability.
    (a) Damages. EXCEPT FOR A BREACH OF SECTION 5, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
    (b) Basis of the Bargain. The limitations of liability stated above form an essential basis of the bargain between the Parties and will survive and apply even if found to have failed of their essential purpose.
  10. Term and Termination.
    (a) Term. The term of this Agreement shall begin on the Effective Date and, unless terminated earlier as described below, shall continue for the Subscription Term forth in the Order Form or, if no Subscription Term is specified therein, for a period of one (1) year (the “Initial Term”).
    (b) Termination. Either party may terminate this Agreement or any Order Form by written notice if the other party is in material breach of this Agreement or such Order Form, where such material breach is not cured within 30 days after written notice of such breach from the non-breaching party. If Customer fails to pay within 15 days after written notice of nonpayment of any amounts owed to Company, such nonpayment will be deemed a material breach.
    (c) Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) all outstanding Order Forms and access to the Service will automatically terminate; and (b) all outstanding payment obligations of Customer will become due and payable immediately.
    (d) Survival. The following provisions will survive any expiration or termination of the Agreement: Sections A.1(d), 2, 4-9, 10(c-d), and 11.
  11. Miscellaneous.
    (a) Changes. Oak9 may make changes or updates to the Service during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of third-party content. Such changes will not result in a material reduction in the functionality or performance of the applicable Service.
    (b) Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, labor shortage or dispute, governmental act or disruption of the Internet or telecommunications.
    (c) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law principles. Any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois, and each Party consents to the personal jurisdiction thereof with respect to such disputes.
    (d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties, and the remaining provisions of this Agreement shall remain in effect.
    (e) Publicity. Oak9 may use Customer’s name as a reference for marketing or promotional purposes on Oak9’s website and in other communication with existing or potential Company customers, subject to any written trademark policies Customer may provide Oak9 in writing, with reasonable advanced notice
    (f) Assignment. Neither Party shall have the right to assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that Oak9 may assign this Agreement without Customer’s consent in connection with a change of control, merger, or sale or transfer of all or substantially all of its assets related to this Agreement. Any attempted assignment in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
    (g) Notices. Any notice required or permitted to be given hereunder may be delivered by registered or certified mail, return receipt requested, or by rapid delivery service with tracking enabled, to the address for the applicable Party written here, or at such other address as may hereafter be furnished in writing by either Party to the other.
    (h) Independent Contractors. The Parties are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
    (i) Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes all prior understandings and agreements. This Agreement may only be amended or modified by a writing signed by both Parties and no terms or conditions set forth in Customer’s purchase order or any other document, to which notice of objection is hereby given, or in any future correspondence between Oak9 and Customer shall alter or supplement this Agreement.
    (j) Miscellaneous. Each Order Form is incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and an Order, the conflicting terms of the Order will prevail. Customer may not subcontract or delegate any rights or obligations granted to it under this Agreement to any third parties, including its consultants or contractors, without Oak9’s prior written consent. Oak9 may use subcontractors or otherwise delegate aspects of its performance under this Agreement, provided that Oak9 will remain responsible hereunder for any such subcontractor’s performance. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Oak9 to object to such terms. Any ambiguity in this Agreement will be interpreted without regard to which party drafted this Agreement or any part thereof. There are no third party beneficiaries to this Agreement, and Customer acknowledges that Oak9 will have no obligations or liability whatsoever with any third parties with which Customer does business. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the remainder of this Agreement will continue in full force and effect without said provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of Oak9 Technology.