THIS SERVICES AGREEMENT (THIS “Agreement”) CONSTITUTES A BINDING CONTRACT BETWEEN OAK9, INC., AN ILLINOIS CORPORATION (“OAK9”) AND THE CUSTOMER (“Customer“) THAT SUBSCRIBES TO THE SERVICE (DEFINED BELOW). CUSTOMER AND OAK9 EACH A “Party” AND COLLECTIVELY, THE “Parties”.
IF YOU HAVE ENTERED INTO A SEPARATE ENTERPRISE SERVICES AGREEMENT WITH US FOR YOUR AND YOUR EMPLOYEES, CONTRACTORS AND AGENTS USE OF THE SERVICES, THEN THAT AGREEMENT WILL APPLY INSTEAD OF THIS AGREEMENT AND RELATED AGREEMENTS.
BY SUBSCRIBING TO THE SERVICE, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
THE ORDER FORM
OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT THAT YOU HAVE FULL AUTHORITY TO BIND SAID ENTITY TO THIS AGREEMENT.
(a) “Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
(b) “OAK9 Content” means any Content (excluding Customer Content) appearing or made available on or in the Service.
(c) “Content” means any text, data, information, files, images, graphics, sounds, music, videos, code, audio clips, links, and/or other similar materials.
(d) “Customer Content” means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Customer.
(e) “Documentation” means any user guide for the Service that OAK9 provides or makes available to Customer.
(f) “Feature” means any module, tool, functionality, or feature of the Service.
(g) “Intellectual Property” means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
(h) “Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
(i) “Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
(j) “Order Form” means the order form submitted to by Customer when subscribing to the Service.
(l) “Service” means OAK9’s proprietary software-as-a-service for centralized system for automating and scaling cloud security using as operated by OAK9’s proprietary console and other Intellectual Property.
(m) “Update” means an upgrade or update (such as a fix or remediation) to or of the Service, excluding new Features.
2. SUBSCRIPTION RIGHTS AND RESTRICTIONS.
Subject to the terms and conditions of this Agreement, OAK9 grants Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right, during the Term (defined below), to access and use the Service solely for Customer’s internal end-use purposes (collectively, the ‘Subscription”). The Subscription shall be subject to whatever other limitations or conditions (as such regarding Features, volume, duration, or location) are specified in the Order Form. Use of the Service must be in accordance with the Documentation. Services will depend on your subscription plan, and you further agree to only use the Services within the limits of such subscription plan. The default subscription plan is the ‘Free Plan’. Details about the Services available under each subscription plan can be found here: https://Oak9.io/plans. If, at any time whilst using the Services, you exceed the limit of your subscription plan, we will charge you, and you will pay, the relevant fees which apply to such excess use as set out above. We will use our reasonable endeavors to notify you when the limit is close to being exceeded; however, we accept no liability for failure to do this. You are solely responsible for monitoring your use of the Services within the permitted limits.
If you move to a higher tier of a paid plan, the change will take effect immediately and we will charge you for the additional fees associated with the new paid plan on a pro-rata basis. If you move to a lower tier of a paid plan, the change will take effect in the next billing cycle. You acknowledge that you will not receive a refund for the then-current billing cycle if you move to a lower tier of a paid plan, or to a non-payment subscription plan. We reserve the right not to provide you with the Services until the relevant fee has been received in full and cleared funds. We also reserve the right to change our fees or payment plans at any time. If you do not agree to such change, you must ask us to delete your account via email to support@Oak9.io and stop using the Services within 30 days of the date the new fee or payment plan becomes effective, at which point this Agreement will be deemed to have been terminated by you. We will only charge you in respect of the period before termination and based on the old fee or payment plan. If you do agree to such change (which will be deemed from your continued use of the Services after the date the new fee or payment plan becomes effective), your next bill will include the new fees on a pro rata basis. You will pay fees without any set-off, counterclaim, deduction or withholding of any kind, except as may be required by law. If any withholding or deduction is required by law, you will, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that it would have received if no such withholding or deduction had been required.
As a condition to the Subscription, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service or OAK9 Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or OAK9 Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service or OAK9 Content; (d) modify, alter, adapt, arrange, or translate the Service or OAK9 Content; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or OAK9 Content; (f) remove, alter, or conceal any copyright, trademark, patent, or other proprietary rights notices displayed on or in the Service or OAK9 Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service or OAK9 Content; (h) make a derivative work of the Service or OAK9 Content, or use them to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item (for example, by way of Customer Content) intended (or that has the potential) to damage or disrupt the Service or OAK9 Content; (j) employ any hardware, software, device, or technique to pool connections, devices or users that directly access or use the Service or OAK9 Content (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service or OAK9 Content by Customer; or (l) take any action that imposes or may impose (as determined in OAK9’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service or OAK9 Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
(e) Reservation of Rights.
For the avoidance of doubt, the Service and OAK9 Content (including any copies thereof) are only licensed hereunder, and no title in or to the Service or OAK9 Content (or such copies) passes to Customer. Any rights not expressly granted herein are hereby reserved by OAK9 and its licensors, and, except for the Subscription, Customer is granted no other right or license to the Service or OAK9 Content, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
The Service will be delivered electronically. Unless specified otherwise in the Order Form, the Service shall be deemed accepted upon delivery.
(g) Data Backup.
The Service is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
3. TERM AND TERMINATION.
This Agreement shall commence as of the Effective Date, and shall continue to be in effect until terminated in accordance with the Order Form or as otherwise set out in this Agreement (the “Term”).
(b) Termination for Convenience.
Either Party may terminate this Agreement for convenience at any time, provided that if Customer wishes to terminate the Agreement in accordance with this Section it must provide at least 30 days’ prior written notice to OAK9. For the avoidance of doubt, any pre-paid Fees will not be refunded if Customer terminates the Agreement in accordance with this Section. If Customer objects to any provision of this Agreement, or becomes dissatisfied with the Service in any way, Customer agrees that its sole remedy, and OAK9’s sole obligation liability, is for Customer to terminate this Agreement as aforementioned.
(c) Termination for Cause.
OAK9 may terminate this Agreement immediately upon notice to Customer (which may be via email or via the functionality of the Service): (a) if Customer commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events in respect of Customer: (i) a receiver is appointed for Customer, which appointment is not dismissed within sixty (60) days; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) Customer is liquidating, dissolving or ceasing normal business operations.
(d) Consequences of Termination; Survival.
Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) the Subscription will automatically terminate and be deemed revoked, and Customer will immediately lose all access to, and use of, the Service; (b) Customer’s Account and related access credentials shall be terminated, and Customer shall be responsible for download or backing up any Customer Content, and OAK9 shall not be required (unless required by applicable Law) to retain any Customer Content on OAK9’s databases and servers hosting the Service; and (c) Customer shall promptly pay any unpaid amounts that are outstanding as of termination. Sections 3 (Term And Termination), 6 (Payment) through 12 (Miscellaneous) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
4. UPDATES AND SUPPORT.
All references herein to the Service shall include any Updates provided by or on behalf of OAK9 under this Agreement. OAK9 may from time to time provide Updates but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies OAK9 may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by OAK9 in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Customer, and Customer consents to any such automatic updating or upgrading of the Service. In some cases, Customer may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Update Specific Terms“). Unless stated otherwise in Update Specific Terms, all Update Specific Terms apply in addition to (and not instead of) this Agreement.
OAK9 (and/or a OAK9 Affiliate or subcontractor) will use commercially reasonable efforts to provide Service-related technical support via any helpdesk or online portal offered via the Service.
Limitation of Warranty on Updates.
We do not warrant that:
(i) the Services will be able to find and monitor all vulnerabilities in all design gaps (including open source design gaps) included or used by your application or code. Whilst we endeavor to keep up to date and build on our open source vulnerability database, you acknowledge that it does not provide any legal or other professional advice in relation to the Services and that we do not guarantee it is a complete source of all vulnerabilities and license issues for all design gaps or that it is relevant or suited to all the design gaps included or used by your code or applications;
(ii) we will be able to fix all vulnerabilities discovered using the Services; or
(iii) a remediation or recommended version upgrade will not break the functionality of your code or will not result in the introduction of new vulnerabilities. We take care when authoring remediations and test all remediations before making them available to you as part of the Services; however, you acknowledge that it is your responsibility to assess the impact of remediation before using it.
(iv) You further acknowledge that the suggestions made by us in relation to fixes (whether for updates, remediations or monitoring services) are provided for general information only and have not been made with your particular requirements in mind. It is therefore not intended to amount to advice on which you should solely rely.
(v) We will not be liable to you for our failure to find, fix and monitor design gaps, or for any damage or loss suffered as a result of a fix deployed.
(d) Accessing the Services.
While we will make reasonable efforts to ensure the Services are operational 24 hours a day, 7 days a week, we do not guarantee that the Services will always be available or be uninterrupted. In particular, but without limitation:
(i) Maintenance Services:
The Services will not be available to you when we carry out maintenance services. We will endeavor to carry out these services outside of normal business hours (being 9:00am to 5:00pm Central Standard Time) and to give you at least three hours’ notice in writing (via email where possible); however you acknowledge that this may not be possible in cases of urgency.
(ii) Communication networks:
The Services may be subject to limitations, delays and other problems inherent in the use of communication networks and facilities.
(iii) We will not be liable to you if the Services are unavailable at any time, or for any period due to an event or cause outside of our control.
5. CUSTOMER CONTENT.
(a) As between Customer and OAK9, Customer is solely responsible and liable for (and agrees to hold harmless and release OAK9 and all OAK9 Affiliates from) all Customer Content, OAK9’s processing of Customer Content, for all use of Customer Content (including without limitation use by others), as well as for the consequences of inputting, uploading, or transmitting Customer Content (including without limitation, for obtaining any licenses, permissions, consents, approvals, and authorizations from individuals appearing therein). Customer hereby represents and warrants that: (i) its Customer Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, privacy rights (or other personal rights), or any Law; (ii) its Customer Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; and (c) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Customer Content. The content, nature, frequency, and quantity of Customer Content has not been specifically requested or authorized (and may or may not be reviewed) by OAK9, and is submitted to the Service at Customer’s sole risk and discretion.
(b) Unless specifically requested by the Service, or strictly required for use of the Service, Customer represents and warrants that Customer Content will not include any Sensitive Data (as defined below), unless Sensitive Data is specifically requested by the Service or OAK9. “Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor Law; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA“), and Customer also agrees that OAK9 is not acting as Customer’s Business Associate or subcontractor (as such terms are defined under HIPAA); (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iv) other information subject to regulation or protection under specific Laws, such as the United States’ Gramm-Leach-Bliley Act (or related Laws); (v) social security numbers, national insurance numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic Laws.
Customer agrees to pay all fees stated in the Order Form (“Fees“) and in accordance with any terms set out in the Order Form.
Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars via wire transfer and/or credit/debit payment; (b) all Fees are payable, and shall be invoiced, in advance and shall be paid within thirty (10) days after OAK9’s delivery of invoice; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon OAK9’s net income. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to OAK9 shall be increased by the amount necessary so that OAK9 receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
(c) Payment Method and Processing.
Customer authorizes OAK9 (either directly or through third parties) to request and collect payment (and otherwise charge, refund or take any other billing actions) from Customer on a recurring basis, including without limitation via OAK9’s payment provider or Customer’s designated banking account, and to make any inquiries OAK9 deems necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment (including for the purpose of receiving updated payment details from Customer’s payment, credit card or banking account provider – such as, updated expiry date or card number as may be provided to OAK9 by Customer’s credit card company). Payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer’s billing information), and additional terms may apply to such payments.
(a) Each party and/or its Affiliates (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other party and/or its Affiliates (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).
8. OWNERSHIP AND INTELLECTUAL PROPERTY.
(a) As between the parties, OAK9 is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the Service; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Service, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by OAK9 to ensure and/or provide OAK9 the ownership rights set forth in the preceding sentence.
(b) Customer Data.
As between the parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content.
(c) Feedback and Statistical Data.
In the event that Customer (or any person on Customer’s behalf) provides any suggestions or similar feedback regarding the Service and/or OAK9 Content, or any part thereof (“Feedback”), and/or to the extent OAK9 receives de-identified statistical (or similar) information or data regarding Customer’s use of the Service and/or OAK9 Content (“Statistical Data”), OAK9 shall be entitled, in perpetuity, to use and commercially exploit such Feedback and Statistical Data without any obligation or restriction whatsoever.
(a) THE SERVICE, OAK9 CONTENT, AND ALL OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY OAK9 ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY OAK9 AND ITS LICENSORS;
(b) OAK9 DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SERVICE, OAK9 CONTENT, OR OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY OAK9, THAT CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
(c) The above disclaimers apply to the maximum extent permitted by applicable Law. If Customer is a consumer under its applicable Law, Customer may have legal rights in its country of residence which would prohibit the above disclaimers from (fully or partially) applying to Customer (for example, some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and do not allow limitations to be imposed on statutory rights), and, to the extent the above disclaimers are prohibited, then Customer and OAK9 agree that they will not apply to Customer.
10. LIMITATION OF LIABILITY.
(a) EXCEPT FOR BREACHES OF CONFIDENTIALITY BY CUSTOMER, A BREACH OF THE SUBSCRIPTION BY CUSTOMER, , CUSTOMER’S PERFORMING ONE OR MORE OF THE LICENSE RESTRICTIONS, INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF OAK9’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, CUSTOMER’S GROSS NEGLIGENCE AND/OR CUSTOMER’S WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, THEFT OF, OR DAMAGE TO, CUSTOMER CONTENT, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
(b) THE COMBINED AGGREGATE LIABILITY OF OAK9 AND OAK9’S AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER (IF ANY) TO OAK9 OR A OAK9 AFFILIATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
(c) THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.
(a) If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against OAK9, a OAK9 Affiliate, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee“), and it is based upon or arises from: (a) Customer’s use of the Service; (b) Customer’s breach of any provision of this Agreement; and/or (c) any demand, claim, suit, action, or proceeding brought by, or loss or damage incurred or suffered by, any employee or client of Customer (each of the foregoing, an “Indemnity Claim“) then, upon written request by OAK9 (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) OAK9 reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Customer agrees to reasonably cooperate with OAK9’s defense activities at Customer’s own cost and expense; and (d) Customer shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
(b) In addition, and regardless of whether (or the extent to which) Customer controlled or participated in the defense and/or settlement of an Indemnity Claim, Customer agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
(a) Governing law and jurisdiction.
This Agreement shall be construed and interpreted under and in accordance with the laws of the State of Illinois, without reference to principles and laws relating to the conflict of laws. The competent courts of Cook County, Illinois shall have exclusive jurisdiction over any matter in connection with this Agreement. Notwithstanding the foregoing, OAK9 may seek equitable or injunctive relief in any court worldwide of competent jurisdiction. Except to protect or enforce OAK9’s intellectual property or proprietary rights or Customer’s confidentiality or payment obligations, any claim or cause of action arising under, or otherwise in connection with, this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose, or else Customer agrees that such claim or cause of action will be barred forever.
(b) Entire Agreement.
This Agreement represents the entire agreement between OAK9 and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and OAK9 with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the OAK9 website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.
(c) Relationship between the Parties.
The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
(d) Modifications to Agreement.
OAK9 may, from time to time and in its sole discretion, modify the terms and conditions of this Agreement, with notice to Customer in accordance with Section 12(k) (Notices). Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription and will automatically apply as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new Features) OAK9 may specify that such modifications become effective during Customer’s then-current Term. If the effective date of a modification is during Customer’s then-current Term, and the modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way) and Customer objects to the modification, then, as Customer’s sole remedy, and OAK9’s sole obligation and liability, Customer may terminate the Agreement upon written notice to OAK9 and receive a pro-rated refund of any pre-paid Fees hereunder based on the remaining period of the then-current Initial Term or Renewal Term (as the case may be); provided, however, that in order to exercise this right, Customer must provide OAK9 with written notice of its objection and termination (which notice must include an explicit reference to the modification to which Customer objects) within thirty (30) days of OAK9’s notice of the modification.
(e) Age Representation.
Customer represents that it is at least thirteen (13) years old, but in any event of a legal age to form a binding contract. Children under the age of thirteen (13) are not permitted to purchase a Subscription or submit an Order Form. If Customer is between thirteen (13) and eighteen (18) years old, Customer’s review of (and any performance under) this Agreement must involve Customer’s parent or guardian.
(f) OAK9 Affiliates.
At OAK9’s sole discretion, any OAK9 obligation hereunder may be performed (in whole or in part), and any OAK9 right or remedy may be exercised (in whole or in part), by a OAK9 Affiliate. Without limiting the generality of the foregoing, OAK9 may assign its right to invoice and receive payments under this Agreement to an OAK9 Affiliate.
OAK9 may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without OAK9’s express prior written consent. Any prohibited assignment shall be null and void.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
(i) Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by OAK9, the writing must be duly signed by an authorized representative of OAK9), and shall be valid only in the specific instance in which given.
Customer agree that OAK9 may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to OAK9, to legal@OAK9.io.
(l) No Third Party Beneficiaries.
Except as otherwise expressly provided in this Agreement (such as OAK9 Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
(m) Export Compliance.
Customer represents and warrants (on behalf of itself and its User Account, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless OAK9 and all OAK9 Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon OAK9 or an OAK9 Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or OAK9, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
(n) Force Majeure.
OAK9 shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (i) act of God, (ii) war, riot or civil commotion, (iii) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, (iv) pandemic and/or (v) other similar cause beyond OAK9’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Service shall not be deemed within OAK9’s reasonable control.
(o) Third Party Charges.
Customer’s use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Customer shall be solely responsible and liable for those charges.
(p) Third Party Software Rights.
If Customer’s authorized use of the Service results in any software code being distributed to Customer, and such software code is owned by a third party (“Third Party Software“), and is subject to its own licensing terms or notices (“Third Party Software Terms“) that render ineffective (or otherwise prohibit) any usage restrictions in this Agreement, then nothing in this Agreement is intended to prohibit (and nothing in this Agreement shall be construed as prohibiting) Customer from engaging in such restricted uses.
The headings in this Agreement are inserted for convenience only and are not to be considered in the interpretation or construction of the provisions hereof.
End User License Agreement
Last updated: November 26, 2020
PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE CONSOLE AND/OR SERVICES.
By clicking the “Sign in” and/or “Create an account” and/or “Launch Stack” button, or installing and in any event by using the OAK9 Security Console (the “Console“), you expressly acknowledge, and agree, that you are entering into a legal agreement with OAK9, Inc. an Illinois (“OAK9“, “we“, “us” or “our“), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End User License Agreement (“Agreement“). To the maximum extent permitted by law, you hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install or use the Console. If you breach this Agreement, we may take action against you, including, but not limited to, terminating your account.
1. The Services:
OAK9 offers you a centralized system for automating and scaling cloud security using our Console (“Services“).
2. Ability to Accept.
3. Console subject to the terms and conditions of this Agreement.
4. License Restrictions.
You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, sell, lease, lend or rent the Console; (ii) make the Console available over a network where it could be used by multiple devices owned or operated by different people at the same time; (iii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the Console; (iv) copy (except for back-up purposes), modify, improve, or create derivative works of the Console or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the Console or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Console; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Console; (vii) use any communications systems provided by the Console to send unauthorized and/or unsolicited commercial communications; (viii) use the OAK9 name, logo or trademarks without our prior written consent; and/or (ix) use the Console to violate any applicable laws, rules or regulations, or for any unlawful, misleading, fraudulent, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement, or violate (or help or encourage others to violate) these Agreement.
5. Safe and appropriate use.
(a) While you are using our Services, please be aware of your surroundings, and communicate safely.
(b) You agree that your use of the Services is at your own risk, and that you will not use the Services to violate any applicable law, regulation, policies, or instructions as outlined in this Agreement and you will not encourage or enable any other individual to do so.
(c) If you have a dispute with any third party relating to your use of Services, you release OAK9 (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
(d) In any event, if we become aware of unlawful or prohibited use of our Services or behavior, we reserve the right to report it to the relevant authorities.
6. User Submissions.
(a) The Console may permit the hosting, sharing, posting, and publishing of content by you and other users (“User Submissions“). Your User Submissions may be posted to the Console, or otherwise be made publicly available. You understand that whether or not such User Submissions are published, we cannot fully guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your User Submissions and the consequences of posting or publishing them. We reserve the right without further notice to you, to delete, and/or remove any and all User Submissions at any time and for any reason.
You represent and warrant that you own or have the necessary rights and permissions to use and authorize us to use all Intellectual Property Rights in and to your User Submissions, and to enable inclusion and use thereof as contemplated by this Agreement. You retain all of your ownership rights in your User Submissions.
(c) License to User Submissions.
You understand and acknowledge that when accessing and using the Console: (i) you will be exposed to User Submissions from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (ii) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against us with respect to (i) and (ii) herein.
We reserve the right to access, read, preserve, and disclose any User Submission or any other information that we obtain in connection with the Console as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including investigation of potential violations of it, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your user support requests, or (v) protect the rights, property or safety of OAK9, our users or the public.
(f) Prohibited Content.
You agree that you will not send, display, post, submit, publish or transmit a User Submission or Message that: (i) is unfair or deceptive under the consumer protection laws of any jurisdiction; (ii) is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) impersonates another person; (v) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (vi) is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, obscene, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise dishonest, inaccurate, inappropriate, malicious or fraudulent; (vii) involves theft or terrorism; (viii) constitutes an unauthorized commercial communication; (ix) contains the contact information or any personally identifiable information of any third party unless you have first obtained the express consent of said third party to include their contact information or personally identifiable information; and/or (x) breaches this Agreement.
(g) Change of Username.
If you select a username or similar identifier for your Account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone’s intellectual property or impersonates another user
(h) Grant of License.
Some features of our Services let you create, upload, post, send, receive, download and store content. When you do that, you retain whatever ownership rights in that content you had to begin with. But you grant us a license to use that content. How broad that license is depends on which Services you use and that you have selected.
(i) Retention of Our Rights.
If you use content covered by intellectual property rights that we have and make available in our Service (for example, images, designs, videos, or sounds we provide that you add to content you create or share), we retain all rights to our content (but not yours).
(j) No Infringement.
Your User Submissions shall comply at all times with all applicable laws and shall not violate, infringe or misappropriate third party rights (including, without limitation, intellectual property, privacy, rights of publicity, reputation and other personality rights).
(k) We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who infringe or are believed to be infringing the rights of copyright holders.
(l) If you wish to report abuse or illegal content, you may do so via security@OAK9.io.
7. Third Party Sources and Content.
(a) The Console enables you to view, access, link to, and use content from Third Party Sources (defined below) that are not owned or controlled by us (“Third Party Content“). The Console may also enable you to communicate and interact with Third Party Sources. “Third Party Source(s)” means: (i) third party websites and services; and (ii) our partners and customers.
(c) We are not responsible for, and we expressly disclaim all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights (defined below) of, or relating to, any Third Party Content.
(d) We do not endorse any advertising, promotions, campaigns, products, services or other materials that is included in any Third Party Content or that is communicated to you from a Third Party Source.
(e) By using the Console you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. You always have the choice of deciding whether or not to interact with a Third Party Source or to view and use Third Party Content. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk.
(f) You are solely responsible and liable for your interaction with a Third Party Source. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against OAK9, and release OAK9 from any and all liability, arising from your use of and interaction on any Third Party Content and from your interaction with any Third Party Source. If you have any query or complaint regarding a Third Party Source or any Third Party Content, you agree to contact the Third Party Source directly.
The Console may permit you to send messages to a Third Party Source or to other App users (“Messages“). You are solely responsible for your Messages and the consequences of sending them, and you agree to hold us harmless, and expressly release us, from any and all liability arising from your Messages. You grant us a worldwide license to use, store, and reproduce your Messages for the limited purpose of facilitating sending them to your designated recipients (and we may also use the tools, software or services of third party service providers to facilitate the sending of Messages to your designated recipients). You represent and warrant that you own or have the necessary rights and permissions to use all of the Intellectual Property Rights in and to your Messages, and to grant the foregoing license to us. You retain all of your ownership rights in your Messages. You acknowledge and agree that the provisions of Section 9 (User Submissions) below shall also apply to Messages that you send via the App.
9. Intellectual Property Rights.
The Console is licensed and not sold to you under this Agreement and you acknowledge that OAK9 and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the Console (and its related software). We reserve all rights not expressly granted herein to the Console. “Intellectual Property Rights” means any and all rights in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
The content on the Console, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (the “Materials“), and the User Submissions (defined below), and the trademarks, service marks and logos contained therein (“Marks“, and together with the Materials and User Submissions, the “Content“), is the property of OAK9 and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “OAK9” and the OAK9 logo are Marks of OAK9 and its affiliates. All other Marks used on the Console are the trademarks, service marks, or logos of their respective owners.
(c) Use of Content.
The content on the Console is provided to you “as is” for your personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If you download or print a copy of the content you must retain all copyright and other proprietary notices contained therein.
10. Information Description.
We attempt to be as accurate as possible. However, we cannot and do not warrant that the content available on the Console is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the content, or any part thereof without the requirement of giving you any notice prior to or after making such changes to the content.
12. Warranty Disclaimers.
(a) THE CONSOLE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
(b) WE DO NOT WARRANT THAT THE CONSOLE WILL OPERATE ERROR-FREE, THAT THE CONSOLE IS FREE OF VIRUSES OR OTHER HARMFUL CODE or that WE will correct any errors in the CONSOLE. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
(c) IF YOU HAVE A DISPUTE WITH ANY OTHER CONSOLE USER, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
(d) Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
(e) We also don’t control what people and others users do or say, and we aren’t responsible for their (or your) actions or conduct (whether online or offline) or content (including unlawful or objectionable content). We also aren’t responsible for services and features offered by other people or companies, even if you access them through our Console.
13. Limitation of Liability.
(a) UNDER NO CIRCUMSTANCES SHALL OAK9 BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF INFORMATION, DATA, PROFITS, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE CONSOLE EVEN IF OAK9 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH THIS INCLUDES WHEN WE DELETE YOUR CONTENT, INFORMATION OR ACCOUNT.
You agree to defend, indemnify and hold harmless OAK9 and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Console; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
15. Export Laws.
You agree to comply fully with all applicable export laws and regulations to ensure that neither the Console nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
16. Updates and Upgrades.
We may from time to time provide updates or upgrades to the Console (each a “Revision“), but are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the Console. All references herein to the Console shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original Console, unless the Revision is accompanied by a separate license agreement which will govern the Revision.
17. Term and Termination.
(a) We reserve the right, at any time, to: (i) discontinue or modify any aspect of the Console; and/or (ii) terminate this Agreement and your use of the Console with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Console in any way, your only recourse is to immediately discontinue use of the Console.
(b) Upon termination of this Agreement, you shall cease all use of the Console. This Section 17 and Sections 6 (User Submissions), 9 (Intellectual Property Rights), 11 (Privacy), 12 (Warranty Disclaimers), 13 (Limitation of Liability), 14 (Indemnity), and 18 (Assignment) to 23 (General) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by OAK9 without restriction or notification. Any prohibited assignment shall be null and void.
We reserve the right to modify this Agreement at any time by sending you an in-Console notification and/or publishing the revised Agreement on the Console. Such change will be effective immediately following the foregoing notification thereof, and your continued use of the Console thereafter means that you accept those changes.
20. Governing Law and Disputes.
To the maximum extent permitted by law, (i) this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to its conflict of laws rules, (ii) You agree to submit to the personal and exclusive jurisdiction of the courts located in Cook County, Illinois, and waive any jurisdictional, venue, or inconvenient forum objections to such courts and (iii) notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction. This Section is not intended to limit your rights under applicable law and/or consumer-protection regulations.
21. We always appreciate feedback or other suggestions, but please note that will own them and we may use them without any restrictions or obligation to compensate you for them, and are under no obligation to keep them confidential.
22. Third Party Open Source Software.
Portions of the Console may include third party open source software that are subject to third party terms and conditions (“Third Party Terms“). A list of any third party open source software and related Third Party Terms is available at [https://github.com/OAK9io]. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software.
This Agreement, and any other legal notices published by us in connection with the Console, shall constitute the entire agreement between you and OAK9 concerning the Console. In the event of a conflict between this Agreement and any such legal notices, the terms of the applicable notice shall prevail with respect to the subject matter of such notice. No amendment to this Agreement will be binding unless in writing and signed by OAK9. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. The headings in this Agreement are inserted for convenience only and are not to be considered in the interpretation or construction of the provisions hereof. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE CONSOLE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.