Effective July 13, 2023
Our Terms of Service (“Terms”) are a legally binding agreement between you and OpenLink Software (“OpenLink”, “we”, or “us”). Our Terms govern your access to and use of our website, products, and services, including their web interfaces, application programming interfaces (“APIs”), and other software, tools, services, documentation, content, intellectual property, and functionalities that we may make available to you (collectively, our “Services”).
By accepting our Terms on behalf of a company, organization, or other entity, you represent and warrant that you are authorized to bind the company, organization, or other entity on whose behalf you are accepting our Terms—you and such entity, collectively, are “you” in this case—and you agree on behalf of that entity that such entity is bound by our Terms. If you are accepting our Terms for yourself, then you agree to be personally bound by our Terms—you individually are “you” in this case.
We may revise and update our Terms from time to time in our sole discretion. If you continue to use the Services after we post the updated Terms on the Services or otherwise give you notice of such changes, it means that you accept and agree to the updated Terms. If you do not accept the updated Terms, you must not continue to access or use the Services.
To access or use the Services, we may ask you to register for an account and provide certain information to us. Any such information must be correct, current, and complete. You agree that we may use this information to communicate with you about our Services and that our communications to you will satisfy any requirements for legal notices.
You acknowledge that your account is specific to you. You must keep all passwords, API tokens, or other credentials to access or use our Services confidential and not disclose them to any other person or entity. You also must not provide any other person or entity with access to our Services using your account credentials. You are responsible for all activity occurring under your account or with use of your access credentials, and you agree to notify us immediately if you become aware of any unauthorized access to or use of your account or access credentials by sending an email to [email@example.com](mailto:firstname.lastname@example.org). Unless we specifically state otherwise in a separate agreement with you, we may terminate your access to the Services or your account in accordance with Section 8 below.
You may close your account at any time by contacting us at [email@example.com](mailto:firstname.lastname@example.org)
As applicable, we may permit you to evaluate our Services for a limited time or with limited functionality that may include restrictions on the number of concurrent users, how you may access our Services, or the number of characters per Prompt. Use of our Services for evaluation purposes are for your internal, non-commercial use only.
Your use of certain Services may be subject to your acceptance of additional terms. Such additional terms will supplement our Terms with respect to such Services may revise or update your rights or obligations with respect to those Services, including your obligations to pay fees. If you accept any such terms on behalf of a company, organization, or other entity, you represent and warrant that you are authorized to bind that entity to those additional terms.
You may not access or use the Services in the following ways:
The Services are owned and operated by us and our affiliates, licensors, and service providers (collectively “Providers”). We and our Providers retain all our respective rights, title, and interest, including intellectual property rights, in and to the Services. Other than the rights of access and use expressly granted in our Terms, our Terms do not grant you any right, title, or interest in or to our Services.
Our Use of Materials. We may use Materials to provide, maintain, and improve the Services and to develop other products and services.
We do not guarantee that our Services will be totally secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and platform in order to access our Services and we recommend that you use your own virus protection software.
You must not misuse the Website or our Services by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not attack the Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offense under the Computer Misuse Act 1990 (or local law equivalent). We will report any such breach to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Website will cease immediately.
Our Services are novel and will evolve. Unless we specifically state otherwise in a separate agreement with you, we reserve the right to temporarily or permanently modify, suspend, or discontinue the Services or your access to the Services or account at any time, in our sole discretion, without notice to you, and we will not be liable for any change to or any suspension or discontinuation of the Services or your access to them, to the maximum extent permissible under applicable law.
You may be required to pay fees to us to access or use the Services or certain features of the Services. You are responsible for paying any applicable fees listed on the Services. Except as expressly provided in these Terms, all fees are non-refundable, to the fullest extent permissible under applicable law.
Fees may be recurring or based on usage. If these fees are specified to be recurring or based on usage, you agree that we may charge such fees on a periodic basis to the payment method you specify at the time of your initial purchase (your “Payment Method”). By using a Payment Method to pay fees, you are expressly agreeing that we are authorized to charge to the Payment Method the fees, together with any applicable taxes.
Except where we specifically agree otherwise in a separate contract with you, you acknowledge and agree that any fees for access to or use of the Services may increase at any time. Additional fees may apply for additional Services or features of the Services that OpenLink may make available. In those cases, we will provide you with notice before charging the additional fees. If we charge additional fees in connection with our Services, you will have an opportunity to review and accept the additional fees that you will be charged, before being charged. If you do not accept any such additional fees, we may discontinue your access to the Services or features. You acknowledge and agree that we will not be held liable for any errors caused by third-party payment processors that we may use.
Our Services may use or be used in connection with third-party content, services, or integrations. We do not control or accept responsibility for any loss or damage that may arise from your use of any third-party content, services, and integrations, for which we make no representations or warranties. Your use of any third-party content, services, and integrations is at your own risk and subject to any terms, conditions, or policies (including privacy policies) applicable to such third-party content, services, and integrations.
You grant to us an irrevocable, royalty-free, perpetual license to use all feedback, ideas, or suggested improvements you provide to us (through the Services or otherwise) regarding the Service Inputs or Outputs (collectively “Feedback”), and you agree that we and our Providers may use the Feedback--together with the related Inputs and Outputs or any derivative thereof--in any manner without any payment or credit to you, including in connection with our development, improvement, and marketing of our Services or other products or services.
Confidential Information. In connection with your use of the Services, we may provide information that we identify as confidential or proprietary or that should reasonably be considered confidential or proprietary under the circumstances (“Confidential Information”).
Obligations. You may only use our Confidential Information in connection with the Permitted Use. You may only share our Confidential Information with your employees and agents who have a need to know such Confidential Information for the Permitted Use and who are bound by obligations of confidentiality at least as protective as those provided in our Terms. You will protect the Confidential Information from unauthorized use, access, or disclosure at least as diligently as you protect your own highly confidential information, and with no less than reasonable care. You are responsible for all uses and disclosures of Confidential Information by anyone to whom you provide access to such Confidential Information (your “Representatives”).
Exclusions. Your obligations under this section do not apply to Confidential Information that you can demonstrate (i) was already known to you without confidentiality obligations at the time of disclosure by us; (ii) was disclosed to you by a third party without a duty of confidentiality; (iii) was or becomes publicly available through no fault of yours or of your Representatives; or (iv) was independently developed by you without use of the Confidential Information. You may disclose the Confidential Information to the extent such disclosure is required by applicable law, but you agree that you will, except where expressly prohibited by applicable law, notify us of any such required disclosure promptly and fully cooperate with us in seeking to limit such disclosure.
Destruction. You will destroy all Confidential Information in your and your Representatives’ possession or control promptly upon our request.
YOUR USE OF THE SERVICES AND MATERIALS IS SOLELY AT YOUR OWN RISK. THE SERVICES AND OUTPUTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WE AND OUR PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, ACCURACY, AVAILABILITY, RELIABILITY, SECURITY, PRIVACY, COMPATIBILITY, NON-INFRINGEMENT, AND ANY WARRANTY IMPLIED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL WE, OUR PROVIDERS, OR OUR OR THEIR RESPECTIVE AFFILIATES, INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “OPENLINK PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, THE MATERIALS, OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, EVEN IF ANY OPENLINK PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND EVEN IF THE DAMAGES ARE FORESEEABLE.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE OPENLINK PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, THE MATERIALS, OR THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE AMOUNT YOU PAID TO US FOR ACCESS TO OR USE OF THE SERVICES (IF ANY) IN THE SIX MONTHS PRECEDING THE DATE SUCH DAMAGES, LOSSES, AND CAUSES OF ACTION FIRST AROSE AND $100. THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THESE TERMS AND WE WOULD NOT OFFER THE SERVICES TO YOU UNDER THESE TERMS WITHOUT THESE LIMITATIONS.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE OPENLINK PARTIES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS; YOUR ACCESS TO, USE OF, OR ALLEGED USE OF THE SERVICES OR THE MATERIALS; YOUR FEEDBACK; ANY PRODUCTS OR SERVICES THAT YOU DEVELOP, OFFER, OR OTHERWISE MAKE AVAILABLE USING OR OTHERWISE IN CONNECTION WITH THE SERVICES; YOUR VIOLATION OF APPLICABLE LAW OR ANY THIRD-PARTY RIGHT; AND ANY ACTUAL OR ALLEGED FRAUD, INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR CRIMINAL ACTS COMMITTED BY YOU OR YOUR EMPLOYEES OR AGENTS. WE RESERVE THE RIGHT TO ENGAGE SEPARATE COUNSEL AND PARTICIPATE IN OR ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU HEREUNDER, IN WHICH CASE YOU AGREE TO COOPERATE WITH US AND SUCH SEPARATE COUNSEL AS WE REASONABLY REQUEST.
THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS MAY NOT APPLY TO YOU.
Unless we specifically state otherwise in a separate agreement with you, we may terminate our Terms at any time by notice to you, and our Terms will terminate automatically without notice upon your violation or breach of any provisions of our Terms. You may also terminate our Terms at any time, for any reason, by discontinuing your access to and use of the Services. Upon termination, the rights granted to you under our Terms to access and use the Services will immediately terminate, and you must destroy all Confidential Information in your or your Representatives’ possession or control.
Upon termination of our Terms or your access to the Services, we may at our option delete any Materials or other data associated with your account.
Sections 5, 6, 9 (with respect to fees outstanding as of such expiration or termination), and 10 through 16 will survive any expiration or termination of our Terms.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW MANDATORY ARBITRATION PROVISIONS OR CLASS ACTION WAIVERS, SO SOME OR ALL OF THIS SECTION 15 MAY NOT APPLY TO YOU.
In order to expedite and control the cost of disputes, OpenLink and you agree that any legal or equitable claim, dispute, action, or proceeding arising from or related to your use of the Services or these Terms (“Dispute”) will be resolved as follows to the fullest extent permitted by applicable law. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT YOU AND OPENLINK ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
Additional Terms. When using our Services, you agree to comply with and are subject to any guidelines, rules, or supplemental terms applicable to such Services that may be posted on the Services from time to time. To the extent that we ask you to review and accept any supplemental terms that expressly conflict with our Terms, the supplemental terms will supersede our Terms with respect to your use of the portion of the Services governed by such supplemental terms, solely to the extent of the conflict.
Entire Agreement; No Assignment. Our Terms and any other terms expressly incorporated by reference form the entire agreement between you and us regarding the subject matter of our Terms. Our Terms may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction.
Equitable Relief. You agree that (a) no adequate remedy exists at law if you breach Section 4 (Use Rights, Requirements, and Restrictions), Section 12 (Confidentiality), or Section 15 (Arbitration); (b) it would be difficult to determine the damages resulting from such breach, and any such breach would cause irreparable harm; and (c) a grant of injunctive relief provides the best remedy for any such breach. Therefore, you waive any opposition to such injunctive relief, as well as any demand that we prove actual damage or post a bond or other security in connection with such injunctive relief.
No Joint Venture, Partnership, Employment, or Agency Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us because of our Terms or your access to or use of the Services.
No Sponsorship. You may not, without our prior written consent, use our name, logo, or other trademarks to promote products or services other than the Services, or in any other way that implies our affiliation, endorsement, or sponsorship.
Severability. If any provision of our Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision will be eliminated or limited to the minimum extent necessary to comply with applicable law, such that the remaining provisions of our Terms will continue in full force and effect.
No Waiver. No waiver by us of any term or condition set forth in our Terms will be deemed a further or continuing waiver of such term or condition, or a waiver of any other term or condition, and any failure by us to assert a right or provision under our Terms will not constitute a waiver of such right or provision.
Legal Compliance. We may comply with governmental, court, and law enforcement requests or requirements relating to provision or use of the Services, or to information provided to or collected under our Terms. We reserve the right, at our sole discretion, to report Prompts or Outputs to law enforcement.
Governing Law; Exclusive Jurisdiction. Our Terms will be governed by, and construed and interpreted in accordance with, the laws of the State of Massachusetts without giving effect to conflict of law principles. If a lawsuit or court proceeding is permitted under our Terms notwithstanding Section 15, you and OpenLink agree that any such dispute will be litigated in the state or federal courts located in Boston, Massachusetts, and you and OpenLink submit to the personal and exclusive jurisdiction of those courts. By using the Services, you waive any claims that may arise under the laws of other jurisdictions.
U.S. Government Use. The Services were developed solely at private expense and are commercial computer software and commercial computer software documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements. Accordingly, U.S. Government users of the Services will have only those rights that are granted to all other end users of the Services pursuant to these Terms.
Export and Sanctions. You may not export or provide access to the Services into any U.S. embargoed countries or to anyone on (i) the U.S. Treasury Department’s list of Specially Designated Nationals, (ii) any other restricted party lists identified by the Office of Foreign Asset Control, (iii) the U.S. Department of Commerce Denied Persons List or Entity List, or (iv) any other restricted party lists. You represent and warrant that you and anyone accessing or using the Services on your behalf, or using your account credentials, are not such persons or entities and are not located in any such country.