- Effective date: 28 July 2020
This OTO Cloud API Agreement (the “Agreement”) is entered into between OTO and the entity agreeing to these terms (“Customer”). “OTO” (also referred to as “Company”, "the Company", "We", "Us" or "Our" in this Terms and Conditions) refers to OTO Systems Inc., 954 Lexington Ave. #1028, NY 10021, USA. This Agreement is effective as of the date you click the “I Accept” button. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the applicable entity to these terms; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the party that you represent to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity please do not click the “I Accept” button (or, if applicable, do not sign this Agreement). This Agreement governs Customer's access to and use of the Services as ordered in the applicable Order Form.
- 1. License Grant and Restrictions.
- (a) License. Subject to the terms and conditions of this Agreement, OTO hereby grants to Customer during the Term, a limited, non-exclusive, non-transferable, fee-bearing, revocable, and non-sublicensable license for Customer (including Customer’s employees and third party consultants (“Authorized Users”) to download and use the OTO Software and all Updates thereto that OTO makes generally available to its other customers, in object code format, and solely for Customer’s own internal business use and operations. If Customer's use of the OTO Software exceeds the number of minutes or licenses paid for by Customer, Customer shall pay OTO the Fees attributable to the excess use in accordance with Section 3.
- (b) Proprietary Rights. Customer acknowledges that OTO is the exclusive owner of all right, title and interest in and to the software programs, methods, models, processes, data (except Customer’s audio and Personal Data), information and materials embodied in and used to provide the OTO Software, and all Updates and upgrades thereto, and all Documentation, Services, and all copyrights, patents, trademark, trade secret and other proprietary rights therein (collectively, “OTO Proprietary Rights”), and OTO reserves all such OTO Proprietary Rights to itself except as expressly licensed to Customer hereunder. To the extent that any OTO Proprietary Rights do not otherwise vest in OTO, Customer hereby agrees to promptly assign such OTO Proprietary Rights to OTO, and to do all other acts reasonably necessary to perfect OTO’s ownership thereof, without additional consideration of any kind. Except as stated in this Agreement, OTO grants no rights or licenses to Customer, by implication, estoppel, or otherwise, in or to the OTO Software, the Updates thereto, or any intellectual property rights therein, and any and all rights not expressly granted to Customer hereunder are reserved by OTO.
- (c) Proprietary Notices. Customer may not remove, modify or obscure any copyright, patent, trademark or other proprietary or restrictive notice or legend contained or included in the OTO Software, Updates thereto, Documentation or any related materials, and Customer shall reproduce and copy all such notices and legends on all copies of the OTO Software, Updates thereof, and Documentation that are permitted to be made hereunder.
- (d) License Restrictions. Nothing in this Agreement will be construed as an implied grant to Customer of any right to, and Customer will not, and will not permit any third party to: (i) use or reproduce the OTO Software or Updates thereto in source code format; (ii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the OTO Software or Updates thereto by any means whatsoever; (iii) modify or alter the OTO Software, Updates thereto, or Documentation in any manner; (iv) use the OTO Software or Updates thereto in any renting, leasing, lending, timesharing, or service bureau arrangement; (v) publish or disclose the results of any benchmark tests for the OTO Software or Updates thereto; (vi) use the OTO Software or Updates thereto to engage in spamming, mailbombing, spoofing or any other fraudulent, illegal or unauthorized use of the OTO Software or Updates thereto; or (vii) knowingly introduce into or transmit through the OTO Software or Updates thereto any virus, worm, trap door, back door. Customer shall cause its Authorized Users to comply with the terms and conditions of this Agreement and Customer will be liable for any breach of this Agreement by its Authorized Users. Customer shall cooperate with OTO, and shall render all reasonable assistance requested by OTO, to assist OTO in preventing and identifying any use of, or access to, the OTO Software, Updates thereto, or Documentation, by Customer’s Authorized Users or otherwise, in violation of the terms and restrictions of the license granted herein or any other breach of this Agreement.
- (d) Feedback. Customer may from time to time, but shall in no event have any obligation to, provide feedback to OTO based on Customer’s experiences with, and use of, the OTO Software, or Updates thereto, including oral or written feedback regarding any flaws, errors, bugs, or other problems Customer finds in the OTO Software or any component thereof, as well as suggested improvements or modifications of the OTO Software (collectively, “Feedback”). Customer hereby assigns to OTO ownership of all such Feedback and all intellectual property rights therein without any obligation for OTO to pay any fee or royalty to Customer to otherwise account to Customer for OTO’s use of such Feedback. In the event, Customer is legally unable to assign such Feedback to OTO, Customer agrees to grant, and hereby grants, to OTO a perpetual, irrevocable, non-exclusive, royalty-free, fully paid up, worldwide, right and license to use such Feedback in connection with the development, maintenance, and exploitation of the OTO Software, and to permit third parties to use such Feedback as part of their licensed use of the OTO Software.
- 2. Maintenance, Technical Support, & Services.
- (a) Maintenance & Technical Support. OTO will provide Customer with maintenance and technical support for the OTO Software in accordance with Exhibit A. Such support shall be provided solely to Customer’s designated technical contact personnel and not to Customer’s end users or any third parties. Customer will designate at least one, but no more than two of its employees as its technical contact personnel to whom OTO will provide technical support hereunder. Unless otherwise expressly agreed to in writing by OTO, Customer shall not permit any third party to perform or provide any maintenance and support services with respect to the OTO Software. Any failure resulting from Customer’s or Authorized Users’ negligence, breach by Customer or Authorized Users of the Agreement, modifications or damages to the OTO Software by anyone other than OTO, or Customer’s use of the OTO Software in combination with any third party software not provided or approved by OTO, will not be considered an error as defined in Exhibit A.
- (b) New Products and Modification of OTO Software. OTO may modify the OTO Software from time to time, provided that each new version will be at least as functional as the prior version provided to Customer (provided that OTO may remove any feature designated as "alpha, “beta “or otherwise as being a pre-release feature). OTO will provide Customer Updates to the OTO Software that OTO makes generally available to its customers. Notwithstanding anything to the contrary herein, OTO reserves the right to define any addition of a major element to the OTO Software as a new product (“New Product”) and not an Update. OTO will not provide any such New Product to Customer under this Agreement unless otherwise agreed to in a written amendment to this Agreement.
- (c) Customer’s Responsibilities. In addition to and without limiting Customer’s other obligations as set forth herein, Customer is responsible for integration and installation of the OTO Software with Customer’s own computer and information technology systems. OTO will not be responsible under this Agreement for changes required to OTO applications as a result of Customer’s changes to its systems. Customer is exclusively responsible for the supervision, management, backup, security, and control of Customer’s information technology systems. Customer must provide OTO with full, good faith cooperation and such information as may be required by OTO in order to perform the support services set forth in the Agreement and Customer must provide OTO with: (i) specific detailed information concerning Customer’s use of the OTO Software as may be required for the performance of the support services; and (ii) all necessary computer services information and access to key personnel needed to provide the support services. If Customer fails or delays in its performance of any of its responsibilities under this Agreement, OTO will be relieved of its obligations hereunder to the extent OTO’ obligations are dependent upon Customer’s performance.
- (d) Services. OTO will perform the services (“Services”) described in one or more Order Form referencing this Agreement and executed by both parties. Order Form may identify: (i) the tasks to be performed; (ii) the items to be delivered to Customer by OTO under the Order Form (“Deliverables”); (iii) the targeted delivery schedule (“Schedule”); (iv) the operational elements, features and functional design specifications of the Deliverables (“Specifications”); (v) any third party deliverables and the party responsible for providing such deliverables; (vi) the prices (“Prices”); (vii) cancellation fees (if any); and (viii) payment terms. Upon execution of an Order Form by both Parties, the Order Form will be subject to and deemed part of this Agreement. In the event of any conflict between the provisions of this Agreement and any Order Form, the provisions of this Agreement will govern. If an Order Form indicates any dependencies or responsibilities on the part of Customer or a third party, OTO’s obligations related thereto will be subject to the complete and timely fulfilment of the dependencies or the performance of responsibilities by OTO or the third party. Unless otherwise set forth in an Order Form, OTO will retain all rights, title and interest in and to each Service or Deliverable, or portion thereof, and intellectual property rights and other rights therein.
- 3. Fees and Payments
- (a) Fees. In consideration of the rights granted to Customer under this Agreement, Customer shall pay OTO the fees for the Services which means the product of the amount of the Services used or ordered by Customer multiplied by the Prices, plus any applicable Taxes (“Fees”).
- (b) Taxes. All Fees are exclusive of applicable sales tax, use tax, and value added taxes or other taxes which are levied or imposed by reason of the performance by OTO under this Agreement, excluding income taxes. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide OTO with any required documentation to verify its tax exempt status with the applicable taxing authorities.
- (c) Payments. Customer must make all payments due under this Agreement in accordance with this Agreement. Late payments will bear interest at one and one-half percent per month or, if less, the maximum rate allowed by law. All Fees paid hereunder are non-refundable.
- 4. Confidentiality
- (a) Confidential Information. Each Party ("Receiving Party") shall keep confidential all information (whether in written or oral form) and materials provided by the other Party or its Affiliates (collectively, "Disclosing Party") that is marked as confidential or proprietary or that the Receiving Party should reasonably recognize as such due to its contents and/or the circumstances surrounding its disclosure ("Confidential Information"). The non-public features and functionality of the OTO Software, as well as any information regarding planned modifications or updates thereto or future OTO products and services constitutes Confidential Information of OTO. The Receiving Party shall keep and instruct its employees, contractors and agents to keep Confidential Information confidential by using at least the same care and discretion as used with the Receiving Party's own confidential information, but in no case less than a prudent and reasonable standard of care. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party and shall only disclose it to those of its employees, contractors and agents who have a reasonable need to know under this Agreement where such employees, contractors and agents are bound by a written confidentiality agreement with the Receiving Party not materially less protective than the terms of this Agreement. The Receiving Party shall be liable for any breach of this Section by its employees, contractors and agents. The Receiving Party shall not use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the Disclosing Party. If either Party, its employees or agents breaches or threatens to breach the obligations of this Section 5(a), the affected Party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged. The terms of this Agreement shall constitute Confidential Information, provided that each Party may disclose the terms of this Agreement (i) in confidence, to its legal counsel, accountants, banks, and current and prospective financing sources and their advisors, or in connection with an actual or proposed merger or acquisition, and (ii) in connection with the enforcement of its rights under this Agreement.
- (b) Permitted Disclosure. A Party will not be obligated under Section 5(a) with respect to information that it can document: (i) is or has become readily publicly available without restriction through no fault of such Party or its personnel; (ii) is received, without restriction, from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or (iii) was rightfully in such Party’s possession without restriction prior to its disclosure by the other Party. Nothing in this Agreement will prohibit receiving Party from disclosing Confidential Information of disclosing Party if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure”); provided that receiving Party shall: (A) give disclosing Party reasonable notice of such Required Disclosure prior to disclosure; (B) cooperate with disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto; and (C) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
- 5. Term and Termination
- (a) Term. The term of this Agreement will begin on the Start Date (as defined in the Order Form) and continue for a period of 1 year from the Start Date (the “Initial Term”). Thereafter, the Agreement will be automatically renewed for subsequent one (1) year terms (each a “Renewal Term”), unless either Party gives written notice of its intent to terminate no less than ninety days prior to the end of the then-current term. The Initial Term and any subsequent Renewal Term(s) are collectively referred to herein as the “Term”.
- (b) Termination. Either Party may terminate this Agreement for cause as follows: (i) upon sixty days written notice if the other Party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such sixty day period; (ii) effective immediately and without notice if the other Party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted under the terms and conditions of this Agreement; or (iii) effective immediately and without notice if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other and continues for ninety days undismissed, unbonded and undischarged. OTO may terminate this Agreement upon ten days prior written notice if Customer fails to meet its payment obligations under this Agreement and does not cure such breach prior to the end of such ten-day period.
- (b) Events Upon Termination. Upon any termination of this Agreement for any reason, Customer shall immediately: (i) cease, and cause all Authorized Users to cease, all use of the OTO Software, Updates thereto, and Documentation; and (ii) erase and uninstall from all servers, computers, systems and other equipment or storage devices the OTO Software, all Updates thereto, the Documentation, and all copies thereof, and certify in writing Customer’s compliance with this Section or return to OTO all copies of the OTO Software, Updates thereto, and Documentation then in Customer’s possession or control and certify to OTO in writing that it has retained no copies of the same. Upon any termination of this Agreement, OTO will invoice Customer for all accrued Fees and all reimbursable expenses, and Customer shall pay the invoiced amount immediately upon receipt of such invoice. In the event of termination of this agreement for any reason, the provisions of Sections 1(e), 3, 4, 5, 6(c), 7, 8 and 9 will survive.
- 6. Limited Warranties and Disclaimer.
- (a) OTO Software Warranty. OTO warrants that, for a period of 30 days after the date of delivery of the OTO Software to Customer (“Warranty Period”), the OTO Software shall conform in all material respects to the applicable Documentation. If, during the Warranty Period, Customer discovers that the OTO Software fails to conform to the warranty provided in this Section, Customer shall give OTO written notice of such nonconformance promptly after such discovery. As Customer’s sole and exclusive remedy, OTO shall deliver to Customer replacement OTO Software as may be necessary to correct the nonconformance. In the event that Customer gives OTO notice of an apparent nonconformance that OTO reasonably determines is not due to any fault or failure of the OTO Software to conform to the warranty provided in this Section, all time spent by OTO personnel resulting in such determination, including time spent attempting to correct the problem, shall be billable to Customer as Services under Section 2(d).
- 7. Indemnification.
- (a) OTO’s Indemnity. Subject to the Indemnification Procedure in OTO Terms and Conditions (also referred as “Terms”), OTO will indemnify, defend and hold Customer harmless from any third party claim or action against Customer to the extent such suit or action is based on a claim that Customer’s permitted use of the OTO Software under this Agreement constitutes an infringement of a United States patent issued as of the Effective Date, trademark, trade name, trade secret, copyright or other U.S. intellectual property right, and OTO will pay those damages and costs finally awarded against Customer in any monetary settlement of such suit or action which are specifically attributable to such claim. In the event that Customer’s use of the same is enjoined as a result of such a claim, OTO shall, at its sole option and expense, either: (i) procure for Customer the rights necessary to continue using the OTO Software; or (ii) replace or modify the affected portion of the OTO Software so that it no longer infringes or misappropriates the third party’s rights, while such replaced or modified OTO Software remains in compliance with the warranty provided in Section 7(a). If OTO, in its sole discretion, determines that neither of these options is commercially reasonable, OTO may terminate this Agreement and Customer will have no further payment obligations hereunder except with respect to accrued Fees. The indemnity set forth in this Section 8 will be Customer’s sole and exclusive remedy and OTO’s entire liability and obligation for any claim of infringement or misappropriation in connection with the subject matter of this Agreement The provisions of the foregoing indemnity will not apply with respect to any instances of alleged infringement based upon or arising out of the use of the OTO Software: (I) in any manner for which the OTO Software was not designed; (II) that has been modified by Customer or any third party; (III) in connection with or in combination with any product, device or software that has not been supplied or approved by OTO; (IV) other than in compliance with this Agreement; (V) OTO’ compliance with Customer’s designs or specifications; or (VI) use in a manner that is not reasonably foreseeable. The indemnity set forth in this Section 8 shall be Customer’s sole and exclusive remedy and OTO’s entire liability and obligation for any claim of infringement or misappropriation in connection with the subject matter of this Agreement.
- (b) Customer’s Indemnity. Subject to the Indemnification Procedure in OTO Terms and Conditions (also referred as “Terms”), Customer will indemnify, defend and hold OTO harmless from any third party claim or action against OTO to the extent such suit or action is based on a claim arising from Section 8(a)(I)-(VI) and, including without limitation, claims arising in contract or tort, and Customer’s negligent conduct or intentional misconduct, except for claims resulting from OTO’s gross negligence or intentional misconduct, and Customer will pay those damages and costs finally awarded against OTO in any monetary settlement of such suit or action which are specifically attributable to such claims.
- 8. General.
- (i) Publicity OTO is entitled to disclose and publicize, in the form of customer lists and on its website, marketing materials and otherwise, the identity of Customer as a client of OTO and display Customer’s trademarks on its website. Neither Party will issue a general press release naming the other Party or the existence of this Agreement, without the prior written consent of the other Party; provided, however, that the Parties agree to issue a mutually acceptable press release upon execution of this Agreement.
- 9. Data and Privacy.
- (a) Refer to Data Processing Agreement.
- Exihibit A
- Problem Reporting
- Standard Support: firstname.lastname@example.org
Support Hours: 9:00 am to 5:00 pm, Monday through Friday CEST, other than OTO company holidays.
Customer may report problems with the OTO Software to the OTO Technical Support group by email.
All support requests should include the Customer name, a description of the problem, email address and telephone number of the Customer contact person. Customer should provide as much information about the problem as possible. A Technical Support Specialist will contact Customer by either a return e-mail or a return phone call and will confirm that OTO has received and logged the problem and the Customer Technical Representative Contact information.The OTO Technical Support Specialist will work with the Customer Technical Representative to resolve the problem. If the problem cannot be resolved in a short period of time by phone or email, the OTO Technical Support Specialist will keep Customer informed as to the progress.
When the problem has been resolved, OTO will notify the Customer Technical Representative by e-mail and the case will be closed on OTO’s records.Customer will assist and provide information to OTO as required to resolve errors or issues with the OTO Software reported by Customer. If Customer fails to cooperate with OTO or fails to provide the necessary information, OTO’s support will not be responsible for its inability to resolve the problem.
Support covers any issue or problem that is the result of a verifiable, replicable error (OTO will use all reasonable means to verify and replicate) in the OTO Software ("Verifiable OTO Issue"). An error will be a Verifiable OTO Issue if it constitutes a material failure by the OTO Software to function in accordance with the Documentation included in the OTO Software. If the OTO Technical Support Specialist reasonably determines that Customer’s problem is not caused by OTO or its systems, equipment, or software, OTO is not obligated to provide support under this Agreement. Nevertheless, OTO will, if possible, offer suggestions as to how Customer can remedy the problem.
The support services may not be available: (i) during periods of scheduled or urgent maintenance, (ii) periods of nonperformance due to force majeure or acts or omissions of either Customer or a third party (including without limitation any failure or defect relating to any hardware or software of Customer or problems with the Internet generally); (iii) during any period of suspension of service by OTO in accordance with the terms of the Agreement or (iv) where Customer is in breach of the Agreement (including without limitation if Customer has any overdue invoices); (v) if Customer has not configured the OTO Software in accordance with the Agreement and OTO’s instructions, or if Customer has provided incorrect configuration information to OTO; or (vi) in connection with a Customer who has used the OTO Software for thirty days or less. The support services do not include services for any failure or defect in the OTO Software caused by any of the following: (a) the improper use or alteration of, or damage to the OTO Software by Customer, Authorized Personnel, or third party; (b) modifications to the OTO Software not made or authorized by OTO; or (c) interaction between the OTO Software and operating systems, database software or other software, unless OTO expressly approves such use in writing.