Terms of Service

Effective: 01-01-2021

These Terms of Service (the “Terms”) describe your rights and responsibilities when using the Opsware Data data protection platform and solutions (the “Services”). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services and form a binding contract between you and Opsware Data (“we,” “our,” “us”). In the event Customer executes (or has previously executed) a Master Agreement with us related to the Services hereunder (a “Master Agreement”) then: (i) any provisions or terms in such Master Agreement that are supplemental to, or not contemplated in, this Agreement, are hereby incorporated by reference into this Agreement; and (ii) the Master Agreement will supersede the terms of this Agreement, but only to the extent of any conflicting terms between this Agreement and the Master Agreement.

“Customer” is the entity agreeing to this Agreement. If the Instance (defined below) is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the Instance. For example, if you sign up for Opsware Data, and send Opsware Data tasks to potential partners, then you are the Customer.

If you are not a Customer but are being invited to use the Services by a Customer, the User Terms of Service (the “User Terms”) govern your access and use of the Services.

Subject to Customer’s compliance with these Terms, Opsware Data will make the applicable Services available to Customer during the Service Term specified in the Order Form submitted by Customer to Opsware Data and accepted by Opsware Data (the “Order Form”). Opsware Data will provide support for the applicable Services to Customer during the Service Term as provided in the appropriate Order Form. During the Service Term and any subsequent renewal periods, Opsware Data will use commercially reasonable efforts to make the Services available according to Opsware Data's Service Level Schedule, which is available on request, and subject to planned downtime and any unscheduled maintenance.

Opsware Data will use commercially reasonable efforts to maintain a security program that is intended to (i) protect the security and integrity of Customer Data (as defined below); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. As part of this program, Opsware Data will use commercially available efforts to maintain administrative, physical and technical safeguards intended to protect the security of Customer Data. However, Customer acknowledges and understands that Opsware Data makes no warranties or guarantees with respect to the measures described in this section.

Individuals authorized by Customer to access the Services (each, an “Authorized User”), including Customer’s employees, contractors, suppliers, or other service providers, may submit Customer Data (as defined in Section 3 below), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign teams, or consolidate teams or projects with other teams or projects.

We will (a) use good faith efforts to make the Services available to Customer and its Authorized Users as described in these Customer Terms and any applicable Order Form; and (b) not use or process Customer Data for any purpose other than as described in our Privacy Policy and to provide the Services without Customer’s prior written consent.

We make use of our employees and third-party contractors (collectively, the “Opsware Data Service Providers”) in exercising our rights and performing our obligations under this Agreement.

Customer will: (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorized Users, other Customer personnel, and other Customer third party service providers that are necessary to grant the rights and licenses in this Agreement and for the lawful use and transmission of Customer Data and the operation of the Services. Each Authorized User must also agree to the Opsware Data User Terms to activate their account and acknowledge that all User Data is also subject to the Opsware Data Privacy Policy.

Customer may only access and use the Services, in accordance with the terms of this Agreement and the Acceptable Use Policy. Customer agrees to provide accurate and complete information when Customer registers for and uses the Services and agrees to update all required information promptly. Each Authorized User who uses the Services must have a separate username and password. Customer must provide a valid email address for each person that Customer authorizes to use Customer’s account, and Customer may only create one account per email address. Customer must provide any other information reasonably requested by Opsware Data

Customer must comply with this Agreement and ensure that its Authorized Users comply with this Agreement and the User Terms (including the Acceptable Use Policy). Customer hereby acknowledges our Acceptable Use Policy and guarantees compliance thereof on behalf of all its Authorized Users. Customer agrees that a breach of the Acceptable Use Policy by an Authorized User constitutes a breach of this Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Users are over 18 years old.

 If we believe that there is a violation of this Agreement that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Non-Opsware Data Product, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

Our services may now and in the future incorporate the services of complementary products (each, a “Non-Opsware Data Product”). THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-OPSWARE DATA PRODUCTS. ULTIMATELY, CUSTOMER (AND NOT US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A NON-OPSWARE DATA PRODUCT IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTY PROVIDER. OPSWARE DATA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USAGE OF SUCH NON-OPSWARE DATA PRODUCTS.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and all uses of the Equipment. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.

“Customer Data” includes any information or content submitted by Customer or its Authorized Users as part of the Services, including messages or files. As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of this Agreement, Customer (for itself and all of its Authorized Users) grants us and the Opsware Data Service Providers a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Opsware Data Products created by or for Customer, as reasonably necessary (a) to provide, maintain and improve the Services for Customer or others, including as set forth in the Privacy Policy; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license, and that it has the right to grant us all licenses to the Non-Opsware Data Products as contemplated herein. We will use Customer Data in accordance with Opsware Data's Privacy Policy.

You acknowledge that Opsware Data has the right to collect and analyze data and other information relating to Customer’s usage behavior and the provision, use and performance of various aspects of the Services and related systems and technologies. You agree that Opsware Data will be free to (a) 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 Opsware Data offerings, and (b) disclose such data in aggregate or other de-identified forms in connection with its business, in each case both during and after the term of this Agreement.

Opsware Data will protect and process all Customer Data and Usage data in compliance with its posted Privacy Policy and applicable data protection laws. Customer warrants that all data provided to Opsware Data was obtained and shared in compliance with applicable data protection laws and its privacy notices.

If your Customer Data or Usage Data is subject to the European data protection laws, including the General Data Protection Regulation (EU) 2016/679, the processing of personal data may be subject to additional requirements. Customer may receive a copy of the Opsware Data Processing Addendum upon request by contacting us.

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for prime time so they are made available “as is,” and any warranties or contractual commitments we make for other Services do not apply to any Beta Products. If a Customer encounters any faults with our Beta Products, please let us know; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.

We may share information about our future products and services. Our public statements about those product plans are an expression of intent, but should not be relied on when making a purchase. If Customer decides to buy our Services, that decision should be based on the functionality or features we make available on the day of purchase and not on the delivery of any future functionality or features.

If Customer provides any suggestions, comments, ideas, improvements, or other feedback or materials related to the Services (collectively, “Feedback”), Customer hereby grants us a nonexclusive, royalty-free, irrevocable, perpetual right to use, display, disclose, publish, perform, reproduce, modify, license, transfer, distribute, and otherwise exploit such Feedback in any manner, including incorporation of such Feedback in updated versions of our Services or other product offerings or materials not licensed hereunder. Customer will be entitled to no compensation, attribution, or credit for, nor gain any right, title, or interest in or to, any materials as a result of such Feedback. In addition, Opsware Data may analyze and share derivative insights from the Customer Data or User Data shared in Opsware Data Projects, provided that we do not share or process any of the underlying Customer Data.

Fees are set forth in the applicable Order Forms, and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in any Order Form, fees paid are non-refundable. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.

Customer may not withhold or setoff any amounts due under this Agreement.  Opsware Data reserves the right to suspend the Customer’s access to the Opsware Data Services until all due and undisputed amounts are paid in full.  Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly, or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

If the Customer believes Opsware Data has charged or invoiced the Customer incorrectly, the Customer must contact Opsware Data no later than thirty (30) days after having been charged by Opsware Data or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit.  In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

As between Customer and us, we own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a non- sublicensable, non-transferable, non-exclusive, limited license during the applicable Term for Customer and its Authorized Users to use the executable code version of these components, but solely as necessary to use the Services and in accordance with these Terms, the Acceptable Use Policy, and the User Terms. All of our rights not expressly granted by this license are hereby retained.

Terms are described in the applicable Order Form. If you have the option to auto-renew and you have chosen to automatically renew your term, you hereby authorize us to continue your term for additional periods equal to the initial Term or as otherwise agreed (each, a “Renewal Term”), without the need to execute or submit a renewal Order Form. Free trials are subject to these terms but are cancelable at any time.

We will provide the same Services selected by you in the Order Form during each Renewal Term. At the end of your initial Service Term or any Renewal Term, we will automatically charge you using the same method as your original term for the applicable recurring fees for the next Renewal Term.

The per-unit pricing during any Renewal Term will remain the same as it was during the immediately prior period. Pricing information for the Services is contained in your Order Form.

You may cancel the automatic renewal of your term at any time by methods available at our channel partners or by sending us an email at [email].

Our fees and cancellation policy may be changed by us, but we will notify you in advance of any material changes and you will have the chance to cancel your term if you do not agree to the changes.

This Agreement remains effective until all Services ordered under the Order Form have expired, been terminated or this Agreement itself is terminated. Termination of this Agreement will terminate all Order Forms.

We or Customer may terminate this Agreement on notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Agreement caused by its Authorized Users. We may terminate this Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

For any breach of a warranty in these Customer Terms, Customer’s sole and exclusive remedies are those described in this Section 5.

Upon termination of this Agreement, all Services covered by or provided under this Agreement shall immediately terminate, and Customer shall cease all use of the Services. Any fees that are or would be payable to Opsware Data under any Order Form shall become immediately due and payable by Customer.

During the Term, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a Customer’s Term, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.

Customer represents and warrants that it has validly entered into this Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Agreement, the Acceptable User Policy, and the User Terms.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE. WE ALSO DISCLAIM ALL EQUITABLE INDEMNITIES.

You acknowledge and agree that: (a) Opsware Data is not licensed to engage in the practice of law in any jurisdiction; (b) Opsware Data is not a law firm and does not provide legal services; (c) Opsware Data's personnel do not provide legal advice and are not acting as Customer’s attorneys; (d) any materials that Opsware Data provides to Customer as part of the Services, including but not limited to templates, forms and assessments, are neither legal advice nor guaranteed to be accurate, complete or up-to-date; and (v) Customer is encouraged to seek the advice of licensed attorneys regarding any legal compliance or other legal matters arising in connection with any Services. The Services provided by Opsware Data in connection with this Agreement or any Order Form are not intended to be legal advice, and you agree not to rely on them as such. WITHOUT LIMITING THE ABOVE, CUSTOMER FURTHER ACKNOWLEDGES THAT OPSWARE DATA'S SERVICES AND SOFTWARE DO NOT CONSTITUTE LEGAL ADVICE AND ARE NOT TO BE RELIED ON AS SUCH.

If a Non-Opsware Data Product is enabled for Customer, please be mindful of any Customer Data that will be shared with the third-party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Opsware Data Product.

IN NO EVENT WILL OPSWARE DATA OR OPSWARE DATA'S DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE SECTION 5 (PAYMENT) ABOVE.

IN NO EVENT SHALL ANY MEMBER OF THE OPSWARE DATA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY TO THE CUSTOMER, USER, OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the Services.

The limitations under this Section 9 (Limitation of Liability) section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Section 9 (Limitation of Liability) section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.

Customer will defend Opsware Data, its directors, officers, employees, and agents (collectively, the “Opsware Data Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to: (a) Customer’s or any of its Authorized User’s use of the Services or any Non-Opsware Data Products; (b) use of the Customer Data as permitted by this Agreement; or (c) Customer’s or any of its Authorized Users’ actual or alleged violation of this Agreement or the User Terms ((a), (b), and (c), each a “Claim Against Us”)), and will indemnify the Opsware Data Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Opsware Data Indemnified Party in connection with or as a result of, and for amounts paid by a Opsware Data Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We will provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control of such claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.

Notwithstanding anything contained in the preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

“Confidential Information” includes anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Confidential Information of Customer includes Customer Data. Confidential Information of Opsware Data includes information about the Opsware Data Services, including information about how the Opsware Data platform works, and any agreements, contracts, templates or other materials provided to Customers in the course of providing Opsware Data Services. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and free of any confidentiality obligation; (c) is received from a third party without breach of any obligation owed to the Disclosing Party and free of any confidentiality obligation; or (d) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party.

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with this Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement (provided, however, in the case of Opsware Data as the Receiving Party, Opsware Data also may collect, use and disclose Confidential Information as described in the Privacy Policy. Nothing herein will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in this Agreement.

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Sections 4.3 (Feedback), 9 (Limitation of Liability), 7.4 (Effect of Termination), 7.5 (Data Portability and Deletion), 6.2 (Disclaimer). 8.3 (Services Not Legal Advice), 8.4 (Data to Third Parties), 10 (Indemnification), 11 (Confidentiality), and 13 (General Provisions) will survive any termination or expiration of this Agreement.

Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers or others, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. If you do not wish to be listed as a reference, please send us an email to [email] stating that it does not wish to be used as a reference.

We will not be liable by reason of any failure or delay in the performance of our obligations on account of events beyond our reasonable control, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemic, and governmental action.

No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to this Agreement.

Except as otherwise set forth herein, all notices under this Agreement will be by email, or we may provide notice to Customer through the Services (e.g., a Opsware Data notification). Notices to Opsware Data will be sent to [email], except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to [email]. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

As our business evolves, we may change these Terms. If we make a material change to these Terms, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced herein. Any revised version of the Terms will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

Except with respect to the Opsware Data Service Providers, neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Opsware Data of any changes. 

This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the Province of Ontario and applicable federal laws of Canada, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto.

Customer acknowledges that its material breach of this Agreement will result in immediate and irreparable damage to Opsware Data, and that money damages alone will be inadequate to compensate Opsware Data. Therefore, in the event of a material breach or threatened material breach of any provision of this Agreement by Customer, Opsware Data may, in addition to all other remedies available to Opsware Data at law or in equity, obtain preliminary or permanent injunctive relief prohibiting such breach or compelling specific performance, in any court of competent jurisdiction, notwithstanding Section 11.10 (Governing Law) above.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

These Customer Terms (including the Acceptable Use Policy) and all referenced pages and Order Forms, if applicable, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, unless Customer has executed a Master Agreement with us, in which case those terms are incorporated into this Agreement, and such Master Agreement will supersede the terms of this Agreement, but only to the extent of any conflicting terms between this Agreement and the Master Agreement.

Contacting Opsware Data

Please also feel free to contact us if you have any questions about Opsware Data's Customer Terms of Service. You may contact us at privacy@opsware.co or at our mailing address below:

Opsware Data, Inc. 70 Plains Road West, Unit 44   Burlington, ON Canada