Terms of Service
MASTER TERMS AND CONDITIONS
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY OTHERWISE USING OR ACCESSING THE OPSCANVAS PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OPSCANVAS PLATFORM.
This Agreement, by and between Customer and OpsCanvas, Inc. (“OpsCanvas”), is effective as of the date of Acceptance (the “Effective Date”) and governs Customer’s use of OpsCanvas’s software-as-a-service platform, including any software, documentation or data related thereto (the “OpsCanvas Platform”). OpsCanvas uses the OpsCanvas Platform to automate and streamline the deployment process for Customer’s hosted applications (each, a “Customer Application”). The OpsCanvas Platform will analyze certain aspects and components of the Customer Application, and other related datasets (the “Customer Application Syntax”), to generate a descriptive model that automatically deploys the Customer Application’s configuration file infrastructure (the “Customer Application IaC”). Customer can then use the OpsCanvas Platform to deliver the Customer Application and its supporting Customer Application IaC rapidly and reliably at scale into supported cloud computing provider environments. FOR CLARITY, THE CUSTOMER APPLICATION SYNTAX AND THE CUSTOMER APPLICATION IAC DOES NOT INCLUDE THE SOURCE CODE UNDERLYING THE CUSTOMER APPLICATION AND OPSCANVAS IS NOT GRANTED A LICENSE TO THE CUSTOMER APPLICATION SOURCE CODE UNDER THIS AGREEMENT. OpsCanvas reserves the right to change or modify portions of this Agreement at any time. If OpsCanvas does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. OpsCanvas will also notify Customer, either through the OpsCanvas Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the OpsCanvas Platform or changes made for legal reasons may become effective immediately. Customer’s continued use of the OpsCanvas Platform after any such changes or modifications become effective constitutes acceptance of such changes or modifications. Each of OpsCanvas and Customer may be referred to herein individually as a “Party” or collectively as “Parties.
1 ACCESS TO PLATFORM.
1.1 Access to Platform. OpsCanvas will make the OpsCanvas Platform available to Customer. Subject to the terms and conditions of this Agreement, OpsCanvas hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the OpsCanvas Platform solely in support of Customer’s internal Customer Applications. OpsCanvas will provide Customer with username(s) and password(s) pursuant to which Customer may access the OpsCanvas Platform. Customer will be responsible for any actions taken by parties with access to such usernames and passwords, and Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform OpsCanvas immediately if it discovers that any such username and/or password has been disclosed or made available to a third party.
1.2 License Restrictions and Responsibilities. Customer will not use the OpsCanvas Platform for any purpose other than the purposes expressly set forth herein. Customer may 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 OpsCanvas Platform; (b) modify, translate, or create derivative works based on the OpsCanvas Platform (except to the extent expressly permitted by OpsCanvas); (c) use the OpsCanvas Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the OpsCanvas Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.
1.3 License to Customer Application Syntax. Customer hereby grants to OpsCanvas: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the Customer Application Syntax, or other information submitted or uploaded by Customer on the OpsCanvas Platform, solely to exercise its rights and perform its obligations under this Agreement; and (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the Customer Application Syntax for OpsCanvas’s business purposes.
1.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to OpsCanvas with respect to the OpsCanvas Platform. OpsCanvas will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to OpsCanvas a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
2 OWNERSHIP; RESERVATION OF RIGHTS. Customer acknowledges that the Customer Application IaC is generated by the OpsCanvas Platform for the purpose of deploying the Customer Application, but the Customer Application IaC is not necessarily unique to the Customer Application. OpsCanvas hereby grants Customer a worldwide, non-exclusive, perpetual right and license to use the Customer Application IaC in connection with the Customer Application, but the Customer Application IaC is otherwise deemed part of the OpsCanvas Platform for purposes of this Agreement. Customer agrees that, as between the Parties, OpsCanvas retains all right, title and interest in and to the OpsCanvas Platform, the Customer Application IaC and all intellectual property rights therein and thereto. OpsCanvas grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the OpsCanvas Platform and the Customer Application IaC. Customer will acquire no right, title, or interest in and to the OpsCanvas Platform or the Customer Application IaC other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Application Syntax.
3 FEES; PAYMENT TERMS.
3.1 Fees. Customer may select either a monthly or annual subscription to use the OpsCanvas Platform from the ordering page (each, a “Subscription Period”). All fees for a Subscription Period are due at the time Customer submits a request for a Subscription Period using the ordering page functionality. Payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Payment Terms. Customer will be required to provide credit card information, or information pertaining to another payment instrument. Customer represents and warrants to OpsCanvas that such information is true and that Customer is authorized to use the payment instrument. Customer will promptly update its account information with OpsCanvas of any changes that may occur. Customer agrees to pay OpsCanvas the amount that is specified for the Subscription Period in accordance with the terms and conditions of this Agreement. If Customer’s Subscription Period is ongoing and is automatically renewed periodically, Customer hereby authorizes OpsCanvas to bill Customer’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable Subscription Period until Customer terminates its account, and Customer further agrees to pay any charges so incurred. If OpsCanvas does change prices, OpsCanvas will provide notice of the change through the OpsCanvas user interface, a pop-up notice, email, or through other reasonable means, at OpsCanvas’ option, at least thirty (30) days before the change is to take effect. Customer’s continued use of the OpsCanvas Platform after the price change becomes effective constitutes Customer’s agreement to pay the changed amount.
3.3 Net of Taxes. All amounts payable by Customer to OpsCanvas hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and Platform taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of OpsCanvas. Customer will not withhold any Taxes from any amounts due OpsCanvas.
3.4 Evaluation and Beta Use. If Customer accesses the OpsCanvas Platform, or a feature or functionality of the OpsCanvas Platform, on an evaluation or beta basis (either referred to as the “Free Tier”), then Customer may use the Free Tier only for evaluation purposes and for the period specified by OpsCanvas. Unless OpsCanvas specifies otherwise, any use of the OpsCanvas Platform on an evaluation basis will be for a period of three (3) hours, beginning at the moment Customer receives access. Customer must not use the Free Tier for any production computing activity. Notwithstanding any other provision of this Agreement, OpsCanvas provides the Free Tier (a) free of charge and without support; and (b) “AS IS” without indemnification or warranty of any kind. Also, certain features or services described in the documentation may not be available for the Free Tier. Customer may not have access to the Free Tier or to the Customer Application Syntax uploaded into the OpsCanvas Platform when the trial period terminates. Any Free Tier features and functionality do not constitute an implied commitment to offer them to Customer or anyone as part of the OpsCanvas Platform on a generally available basis.
4 TERM; TERMINATION.
4.1 Term; Termination. This Agreement will remain in effect throughout the duration of Customer’s Subscription Period. Each Subscription Period shall automatically renew for additional periods of the same duration as the initial Subscription Period (each, a “Renewal”). Customer may opt out of a Renewal by providing notice of its intent not to renew no later than the conclusion of the then-current Subscription Period. Once a Subscription Period expires and a Renewal occurs, that renewal shall be deemed a “Subscription Period” and fees shall become due and payable OpsCanvas may suspend Customer’s access to the OpsCanvas Platform for failure to make payment.
4.2 Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights with respect to the OpsCanvas Platform will immediately terminate, and Customer will (a) cease use of the OpsCanvas Platform; (b) return to OpsCanvas or destroy, in OpsCanvas’ sole discretion, all copies or other embodiments of OpsCanvas’s Confidential Information; and (c) pay to OpsCanvas all amounts due and owing under this Agreement.
4.3 Survival. Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (License Restrictions and Responsibilities), 1.3 (License to Customer Data), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.
5 CONFIDENTIALITY.
5.1 Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof. For the avoidance of doubt, the OpsCanvas Platform and the Customer Application IaC is Confidential Information of OpsCanvas.
5.2 Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3 Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
5.4 Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
6 REPRESENTATIONS and WARRANTIES; DISCLAIMER.
6.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
6.2 OpsCanvas Representations and Warranties. OpsCanvas will use reasonable efforts consistent with prevailing industry standards to maintain the OpsCanvas Platform in a manner which minimizes errors and interruptions. Notwithstanding the foregoing, the OpsCanvas Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by OpsCanvas or by third-party providers, or because of other causes beyond OpsCanvas’s reasonable control, but OpsCanvas will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
6.3 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide OpsCanvas with access to the Customer Application and the Customer Application Syntax, and Customer’s provision of the Customer Application and the Customer Application Syntax to OpsCanvas hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OPSCANVAS PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND OPSCANVAS DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. OPSCANVAS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. OPSCANVAS DOES NOT WARRANT THAT THE OPSCANVAS PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE OPSCANVAS PLATFORM WILL BE SECURE OR UNINTERRUPTED.
7 LIMITATION OF LIABILITY.
7.1 Disclaimer of Consequential Damages. EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES), ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.2 BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO OPSCANVAS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8 INDEMNIFICATION.
8.1 Indemnification by OpsCanvas. OpsCanvas will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the OpsCanvas Platform infringes any United States copyright (except for claims for which OpsCanvas is entitled to indemnification under Section 8.2, in which case OpsCanvas will have no indemnification obligations with respect to such claim). OpsCanvas will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the OpsCanvas Platform by any party other than OpsCanvas; (b) the combination, operation, or use of the OpsCanvas Platform with other product(s), data or services where the OpsCanvas Platform would not by itself be infringing; or (c) unauthorized or improper use of the OpsCanvas Platform. This Section 8.1 states OpsCanvas’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer will indemnify, defend and hold OpsCanvas and the officers, directors, agents, and employees of OpsCanvas (“OpsCanvas Indemnified Parties”) harmless from Liabilities that are payable to any third party by the OpsCanvas Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (i) any Customer Application or any Customer Application Syntaxuse by Customer, or (ii) any use of the OpsCanvas Platform in violation of this Agreement.
8.3 Action in Response to Potential Infringement. If the use of the OpsCanvas Platform by Customer has become, or in OpsCanvas’s opinion is likely to become, the subject of any claim of infringement, OpsCanvas may at its option and expense (a) procure for Customer the right to continue using the OpsCanvas Platform as set forth hereunder; (b) replace or modify the OpsCanvas Platform to make it non-infringing so long as the OpsCanvas Platform has at least equivalent functionality; (c) substitute an equivalent for the OpsCanvas Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
8.4 Indemnification Procedure. If a Customer Indemnified Party or a OpsCanvas Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9 GOVERNMENT MATTERS. Customer may not remove or export from the United States or allow the export or re-export of the OpsCanvas Platform, 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 OpsCanvas Platform (including the software, documentation and data related thereto) 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.
10 GENERAL. The terms and conditions of this Agreement are severable. 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. Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise. Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement and the ordering page are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the ordering page, the terms of this Agreement will prevail, unless the ordering page expressly amends a provision in this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the recipient’s address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; 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. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. This Agreement will be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Alexandria, Virginia and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the OpsCanvas Platform will cause irreparable harm and injury to OpsCanvas for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that OpsCanvas will be entitled to injunctive relief in the event Customer uses the OpsCanvas Platform in violation of the limited license granted herein or uses the OpsCanvas Platform in any way not expressly permitted by this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
