O3 End User License Agreement

Download PDF

       Click here to download a PDF copy of O3’s End User License Agreement.

END USER LICENSE AGREEMENT

Digital Version, Updated 2021

PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS
END USER LICENSE AGREEMENT (“Agreement”) CAREFULLY BEFORE CLICKING AN “AGREE” OR
SIMILAR BUTTON OR USING THE PROGRAM. THIS AGREEMENT IS A LEGALLY BINDING
CONTRACT BETWEEN YOU AND O3 INSIGHT, INC. THAT SETS FORTH THE TERMS AND
CONDITIONS THAT GOVERN YOUR USE OF THE PROGRAM. BY CLICKING AN “AGREE” OR
SIMILAR BUTTON AND/OR USING THE PROGRAM, YOU AGREE TO ABIDE BY ALL OF THE TERMS
AND CONDITIONS STATED OR REFERENCED HEREIN. IF YOU DO NOT AGREE TO ABIDE BY
THESE TERMS AND CONDITIONS, DO NOT CLICK AN “AGREE” OR SIMILAR BUTTON OR USE THE
PROGRAM. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED
TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND
CONDITIONS WILL NOT BE ACCEPTED BY O3 INSIGHT AND WILL NOT BE PART OF THIS
AGREEMENT

1. License. In consideration of the payment of the fees for the Services, O3 Insight (“O3”) grants you
the right to use the username and password assigned to your account to access and use the Services for
internal purposes during the term of the Agreement. You shall be responsible for maintaining the security
of your username and password, and you shall be responsible for all actions taken under the username
and password assigned to you.

2. Title. O3 shall own and retain all right, title and interest in and to (a) the Services and all software
provided as a part thereof, all improvements, enhancements or modifications thereto, whether arising out
of support calls, your suggestions or otherwise, (b) any software, applications, inventions or other
technology developed in connection with services or support provided by O3 related to the Services, and
(c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary,
O3 shall have the right to collect and analyze data and other information relating to the provision, use and
performance of various aspects of the Services and related systems and technologies (including, without
limitation, information concerning customer data and data derived therefrom), and O3 will be free (during
and after the term hereof) to (i) use such information and data to improve and enhance the Services and
for other development, diagnostic and corrective purposes in connection with the Services and other O3
offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its
business. No rights or licenses are granted except as expressly set forth herein.

3. License Restrictions. You shall not, directly or indirectly: (a) reverse engineer, decompile,
disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas,
know-how or algorithms relevant to the Services or any software, documentation or data related to the
Services; (b) modify, translate, or create derivative works based on the Services or any software (except to
the extent expressly permitted by O3 in writing in its discretion or authorized within the Services); (c) use
the Services or any software for timesharing or service bureau purposes or otherwise for the benefit of a
third party; or (d) remove any proprietary notices or labels. You may not remove or export from the United
States or allow the export or re-export of the Services, software or anything related thereto, or any direct
product thereof in violation of any restrictions, laws or regulations of the United States Department of
Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United
States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation
are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be
“commercial computer software” and “commercial computer software documentation.” Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release,
performance, display, or disclosure of such commercial software or commercial software documentation by
the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except
to the extent expressly permitted by the terms of this Agreement.

4. Compliance. You represent, covenant, and warrant that you will use the Services only in
compliance with O3’s standard published policies then in effect (the “Policy”) and all applicable laws and
regulations. You hereby agree to defend, indemnify and hold harmless O3 against any damages, losses,
liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection
with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of
Services. Although O3 has no obligation to monitor your use of the Services, O3 may do so and may
prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. For
avoidance of doubt, O3 shall not be deemed to have assumed any responsibility or liability to you or any
other party arising out of any monitoring by it of your use of the Services.

5. Confidentiality. The Services and all software, documentation and information provided by O3
through the Services shall be the confidential information of O3. You agree to use the confidential
information only as required to exercise your rights and fulfill your obligations under this Agreement. You
agree not to disclose the confidential information to any third party except as expressly agreed to by O3 in
writing.

6. Disclaimer of Warranty. O3 shall use reasonable efforts to maintain the Services in a manner
which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for
scheduled maintenance or for unscheduled emergency maintenance, either by O3 or by third-party
providers, or because of other causes beyond O3’s reasonable control, but O3 shall use reasonable
efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, O3
does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to
the results that may be obtained from use of the Services.

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND
O3 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. O3 MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE
CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY,
SUITABILITY, ACCURACY OR COMPLETENESS OF THE PROGRAM OR THE RESULTS YOU MAY
OBTAIN BY USING THE PROGRAM OR THAT THE PROGRAM WILL BE UNINTERRUPTED OR
ERROR-FREE OR THAT IT IS COMPLETELY SECURE. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, O3 DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE
OF THE PROGRAM WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (B) THE
QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL YOU PURCHASE
OR OBTAIN THROUGH THE PROGRAM WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE
THAT O3 DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES,
INCLUDING THE INTERNET, AND THAT THE PROGRAM MAY BE SUBJECT TO LIMITATIONS,
DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS
FACILITIES. O3 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER
DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED
OTHERWISE BY O3, THE PROGRAM IS PROVIDED TO YOU ON AN “AS IS” BASIS.

7. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, O3 AND ITS
SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS),
OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR
INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND O3’S
REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO O3 FOR THE
SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT
GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT O3 HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.

8. Support. Provided all payments are current, [during the term of this Agreement] O3 will provide
reasonable technical support with the operation of the Software to your technical support representative via
the in-application chat utility, telephone or electronic mail on weekdays during the hours of 9:00 am through
5:00 pm Central time, with the exclusion of Federal Holidays (“Support Hours”). You may initiate a helpdesk
ticket during Support Hours by using the in-application chat support utility. O3 will use commercially
reasonable efforts to respond to all Helpdesk tickets within one (1) business day. O3 will exercise
reasonable efforts to resolve errors that are reproducible, but O3 cannot, and does not, warrant that all
errors will be resolved. Further, O3 shall have no obligation to provide support for: (i) altered, damaged or
modified Software; (ii) Software that is not the then-current release available from O3; (iii) Software
problems caused by your negligence, misuse or unauthorized use, Equipment malfunction, or other causes
beyond the control of O3; (iv) Software accessed via Equipment or browser environment which is not
supported by O3; or (v) pre-release or beta Software.

9. General. If any provision of this Agreement is found to be unenforceable or invalid, that provision
will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain
in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by
you except with O3’s prior written consent. O3 may transfer and assign any of its rights and obligations
under this Agreement without consent. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous written and oral agreements,
communications and other understandings relating to the subject matter of this Agreement; provided,
however, that if your company has executed a SaaS Agreement with O3, then that SaaS Agreement shall
stay in effect and in the event of a conflict between this Agreement and the SaaS Agreement, the SaaS
Agreement shall control. All waivers and modifications must be in a writing signed by both parties, except
as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result
of this Agreement and you do not have any authority of any kind to bind O3 in any respect whatsoever. In
any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to
recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed
to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if
transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery
service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement
shall be governed by the laws of the State of Alabama without regard to its conflict of laws provisions.