By accessing or using the Thundra beta service offering made available by OpsGenie (the “Service”), you (“Recipient”) and OpsGenie, Inc., (“OpsGenie”), agree to the terms and conditions of this Thundra Beta Test Agreement (the “Agreement”) which constitute the entire agreement between Recipient and OpsGenie and govern Recipient’s access and use of the Service. If Recipient is entering into this Agreement on behalf of a company, or other legal entity (“Entity”), Recipient represents that Recipient has the authority to bind such Entity to the terms and conditions of this Agreement, and in such case the term “Recipient” shall refer to such Entity. If Recipient does not have such authority, or if Recipient does not agree with these terms and conditions, Recipient must not accept this Agreement and may not use the Service. RECIPIENT IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE ACCESSING OR USING THE SERVICE. BY ACCESSING OR USING SUCH SERVICE, RECIPIENT CONFIRMS THAT RECIPIENT HAS READ AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Service; License. For a period of fourteen (14) days from the date of activation of the Service (“Beta Test Subscription Term”), OpsGenie will provide Recipient access to the Service. OpsGenie may renew, extend, shorten or otherwise modify the Beta Test Subscription Term at its sole discretion. During the Beta Test Subscription Term, OpsGenie grants, and Recipient accepts, a license to use and access the Service via on-line software solely for the purpose of testing and evaluating the Service. This license is limited, worldwide, nonexclusive, non-transferable, non-sublicensable and subject to this Agreement. Recipient shall not: (a) access or use the Service for the benefit of any third party; (b) decompile, disassemble, reverse engineer, otherwise attempt to extract the source code of, copy, modify or distribute any of the software or technology enabling or providing the Service; (c) delete or alter the copyright, trademark, or any other proprietary rights or other legal notices appearing in or on the Service; or (d) access or use the Service for purposes of monitoring the availability, performance or functionality of the Service, or for any other benchmarking or competitive analysis purposes.
2. Users. OpsGenie will determine the specified number individuals that Recipient may authorize to use the Service in OpsGenie’s sole discretion (“Users”). OpsGenie may increase or decrease such specified number at any time. Such Users will be identified by a unique username and password which may only be used by one (1) User. Recipient will not share a username and password among multiple Users.
3. Recipient Obligations and Responsibilities. Recipient shall access and use the Service in accordance with this Agreement and applicable laws and regulations. Recipient shall be responsible for ensuring that all Users comply with the terms and conditions of this Agreement. Recipient shall be responsible for all acts or omissions of its Users. Recipient will comply with the reporting and other obligations which may be required by OpsGenie in connection with the participation in this beta test program. Recipient shall provide additional reports and materials as may be reasonably requested by OpsGenie.
4. Term; Termination. This Agreement will remain in effect for the duration of any and all Beta Test Subscription Terms. OpsGenie may terminate this Agreement at any time for any reason or no reason by sending written notice of such termination to Recipient. Upon any termination or expiration of this Agreement, Recipient shall immediately cease all use of the Service and OpsGenie will revoke all passwords and access to the Service. Following the termination or expiration of the Agreement, OpsGenie reserves the right to delete all electronic data or information submitted by Recipient to the Service (“Recipient Data”).
5. Ownership. Subject only to the limited rights to access and use the Service as expressly set forth herein, all rights, title and interest, including without limitation all related patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, in and to the (a) Service, (b) software, technology and other components of or used to enable or provide the Service, and (c) reports and materials provided by Recipient in accordance with this Agreement, will remain with and belong exclusively to OpsGenie. OpsGenie shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback OpsGenie receives from Recipient or Users using the Service. OpsGenie reserves all rights not expressly granted herein.
6. Confidentiality. OpsGenie confidential information (“Confidential Information”) includes and will include (i) the Thundra beta service offering and test program (including without limitation that it is being provided and administered by OpsGenie), (ii) the existence of this Agreement (including without limitation the identities of the parties hereto), (iii) the terms and conditions of this Agreement, (iv) all information disclosed by OpsGenie to Recipient under this Agreement, (v) the software and technology enabling and providing the Service, and (vi) the reports and materials provided by Recipient in accordance with this Agreement. Recipient shall hold the Confidential Information in the strictest confidence and shall not disclose such Confidential Information to any third party without OpsGenie’s prior written consent. Recipient will not be subject to any confidentiality obligations under this Agreement with respect to any information that: (a) is publicly known or made generally available through no act or omission of Recipient; or (b) is obtained by Recipient from a third party without any obligations of confidentiality.
7. No Warranties. The Service is a beta release offering. The Service may not operate correctly and may be substantially modified prior to first commercial release, or at OpsGenie’s option may not be released commercially in the future. THE SERVICE IS PROVIDED BY OPSGENIE ‘AS-IS’ WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH THE RECIPIENT. OPSGENIE MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPSGENIE WILL NOT BE LIABLE TO RECIPIENT OR ANY OTHER THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER TORT, BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR BUSINESS INTERUPTION, EVEN IF OPSGENIE HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR LOSS. IN NO EVENT WILL OPSGENIE’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR DAMAGES OR LOSSES OF ANY KIND EXCEED FIFTY UNITED STATES DOLLARS ($50.00).
9. Indemnification. Recipient shall defend and indemnify OpsGenie against all liabilities, damages, losses, claims and expenses (including reasonable attorney’s fees), incurred by OpsGenie that arise from a third party in connection with Recipient Data, or Recipient’s use of the Service in breach of this Agreement.
10. Equitable Relief. Recipient acknowledges that a breach by Recipient of any confidentiality or proprietary rights provision of this Agreement may cause OpsGenie irreparable damage, for which the award of damages would not be adequate compensation. Consequently, OpsGenie may institute an action to enjoin Recipient from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and OpsGenie may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which OpsGenie may be entitled at law or in equity.
11. Miscellaneous Provisions. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict of laws provisions. The parties irrevocably consent to the state and federal courts serving Delaware with respect to any dispute arising under this Agreement. Recipient may not assign or transfer this Agreement without the prior written consent of OpsGenie, and any purported assignment made without the required consent will be null and void. If any provision of this Agreement is held to be invalid, the remaining provisions will remain fully enforceable. This Agreement constitutes the entire agreement between the parties and supersedes all other prior written or oral agreements. The terms and conditions of this Agreement may be revised by OpsGenie from time to time and Recipient’s continued access and use of the Service will constitute Recipient’s agreement to the latest version of this Agreement. It is Recipient’s responsibility to access the Thundra beta service website to determine the latest version of this Agreement. By continuing to use the Service, Recipient will be deemed to have accepted such new terms and conditions. Sections 5, 6, 7, 8, 9, 10 and 11 will survive termination or expiration of this Agreement.