These Terms of Service, the Order Form, and any additional document incorporated herein are collectively referred to as the “Agreement” and constitute a legally binding agreement between Osano, Inc., a Delaware Public Benefit Corporation, with offices at 3800 North Lamar Blvd, Suite 200, Austin, TX 78756 (“Osano”), and you (the “Customer”). Customer and Osano may each be referred to as a “Party” and collectively referred to as the “Parties”.
This Agreement governs your access to and use of the Services. By accepting this Agreement, either by checking a box indicating your acceptance or by executing an order form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company, an enterprise or other legal entity, you represent that you have the authority to bind such legal entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use these Services.
1. Definitions.
“Affiliate” means a person or entity that owns is owned by or is under common control of a Party. “Control” means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such an entity.
“Availability” means the total available minutes in each calendar month less any minutes attributable to a Scheduled Downtime. Availability is calculated and viewable at https://status.osano.com. The Osano Statement of Service Levels Statement is viewable here: https://osano.trusthub.com/sls.
“Authorized Users” means individuals who are authorized by Customer to use the Platform and Services with varying levels of control and access specified by Customer and who have been supplied user identifications and passwords by Customer. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not include any employee or agent of any Osano competitor.
“Critical Malfunction” means Osano administrative interfaces at https://my.osano.com are unreachable, or external, mission-critical endpoints (including Consent Management or Subject Rights Portal) are returning errors.
“Customer Information” means all information and data submitted to Osano by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services.
“Documentation” means the instruction manuals, guides, and frequently asked questions available at https://docs.osano.com.
“Monitored Vendor Count” means the total number of products monitored for privacy scores, litigation, or document monitoring by Osano on behalf of Customer.
“Monthly Users” means the average number of unique users who access the Customer’s consent management service monthly as measured for a trailing three-month period.
“Platform” means the Osano proprietary Software as a Service including but not limited to hosted software SDKs, libraries, APIs, and user interfaces.
“Privacy Regulation” means the California Consumer Privacy Act and the California Consumer Privacy Act Regulations (together, the “CCPA”), the California Privacy Rights Act and regulations (together, the “CPRA”), the Privacy and Electronic Communications Directive 2002/58/EC (“ePrivacy Directive”), the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and the Lei Geral de Proteçāo de Dados (“LGPD”). For the avoidance of doubt, all other privacy regulations, including US state privacy regulations, supplemental regulations and derogated acts are expressly excluded from Section 4.7 Reimbursement of Regulatory Fines or Penalties.
“Order Form” means a document issued by Osano and executed or otherwise agreed upon by authorized representatives of the Customer, which specifies, among other things and as applicable, a description of the Services, the Fees, and any other details specifically related to the Services.
“Regulatory Agency” means an independent governmental body established by legislative act and charged with the supervision, regulation, or enforcement of a Privacy Regulation.
"Scheduled Downtime" means regular Platform maintenance, upgrades, and may take place on Sunday mornings between midnight and 4 AM U.S. Eastern Time. If Scheduled Downtime is necessary, at least 48 hours advance notice will be provided.
“Services” means access to the Platform and services, via an account, that are ordered by and paid for by Customer under an Order Form and made available by Osano, including user guides, documentation, and help/training materials provided by Osano.
“Service Start Date” means, for each Order Form, the earlier of (i) the date set forth on the Order Form or (ii) the first date on which Customer is granted access to the Services purchased pursuant to the Order Form.
“Software as a Service” (“SaaS”) means a software delivery model in which a hosted software platform is made available on a subscription basis.
“Usage Data” means all data, information, and statistics collected by Osano related to the Customer’s consent and data activity, including, without limitation, those pertaining to the consents, traffic, and PII storage.
2. Osano Services.
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s business purposes, Osano shall make the Services available to Customer in accordance with an executed Order Form.
2.2. Updates and Functionalities. Customer acknowledges that, from time to time, Osano may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services. Excluding the addition of wholly new products, Osano will provide, implement, configure, install, support, and maintain at its own cost all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). In no way is Osano required to customize its Services for Customer, and Osano does not represent or warrant that its Platform or Services will be compatible with Customer’s systems.
2.3 Acceptable Use Policy.
Customer shall:
- be responsible for Authorized Users’ compliance with this Agreement;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and usernames confidential and not permitting any third-party to access or use its or any of its Authorized Users’ usernames, passwords, or Customer account for the Services;
- be solely responsible and liable for all activity knowingly conducted through its Customer account in connection with the Services;
- promptly notify Osano if Customer becomes aware of or suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) username, password, or Customer account; and
- use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws and government regulations.
Customer must not:
- make the Platform or Services available to anyone other than its Authorized Users;
- sell, trade, or otherwise transfer the Platform or Services to another party;
- use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property rights, privacy rights, rights of publicity, or other laws; or send spam or other unsolicited messages in violation of applicable law; or upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
- attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
- attempt to store fake or bogus consent records or other data records;
- attempt to load test the Platform or Services without prior written approval from Osano;
- attempt to modify or cause to be hidden any Osano “powered by” branding without prior written consent.
- attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform or Services;
- access the Platform or Services in order to build a similar or competitive product or service to Platform or Services;
- commit any act or do anything which might: (i) reasonably be considered immoral, deceptive, or obscene; (ii) injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with Osano;
- knowingly implement Osano in a manner which is inconsistent with data privacy laws applicable to Customer's website visitor(s) or application user(s); or
- authorize, assist, or encourage any third-party to do any of the above.
Osano may, with prior written notice to Customer, suspend or terminate access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other Osano customers. In the event of such a suspension, if Customer does not reasonably resolve the issue within thirty (30) days, Osano may terminate this Agreement.
2.4 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement and any Order Form are non-exclusive and that nothing in this Agreement or any Order Form will be interpreted or construed to prohibit or in any way restrict Osano’s right to license, sell, or otherwise make available the Platform or Services to any third-party.
3. Intellectual Property.
3.1 Platform and Services. As between Customer and Osano, Osano retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect any of Osano’s rights or interests in the Platform or Services or any other Osano intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Osano.
3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to Osano with respect to the Services. Such information, when used in an anonymized manner such that neither Customer’s identity nor any Customer Confidential Information is publicly ascertainable from such information, is deemed to be “Feedback,” and notwithstanding Article 5 of this Agreement, shall not create any confidentiality obligation for Osano. Customer shall, and hereby does, grant Osano a non-exclusive, worldwide, perpetual, irrevocable, transferable, royalty-free, license to use the Feedback to improve its Platform or Services.
3.3 Customer and Usage Data. Customer hereby grants Osano a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with the right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer’s Usage Data and Customer Information for the sole purpose of providing and developing the Platform and Services to Customer and supporting Customer’s use of the Platform and Services. Osano may use aggregated and anonymized Usage Data for analytics to improve the Platform and Services, provided that such Usage Data cannot be in any way linked to Customer or any individual person or used to identify Customer or any individual person. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all rights, title, and interest in and to, and all intellectual property rights in the Customer Information. Nothing in this Agreement will confer on Osano any right of ownership or interest in or to or the intellectual property rights in the Customer Information.
3.4 Data Processing. All Customer Information will be processed by Osano according to the Data Processing Addendum, as updated from time to time, which is automatically incorporated into this Agreement and available at https://osano.trusthub.com/dpa. Customer is solely responsible for the Customer Information submitted to the Platform by Customer. Osano may use Customer Information or Usage Data to provide the Services, as provided herein and in accordance with applicable data privacy laws. Customer is a Business and Osano is a Service Provider for purposes of the California Consumer Privacy Act and Customer is a Controller and Osano is a Processor for purposes of the General Data Protection Regulation. Osano will not: (a) sell the Customer Information or Usage Data; (b) retain, use or disclose the Customer Information or Usage Data for any purpose other than for the specific purpose of performing the Services; (c) retain, use or disclose the Customer Information or Usage Data for a commercial purpose other than providing the Services; or (d) retain, use or disclose the Customer Information or Usage Data outside of the direct business relationship between Customer and Osano.
4. Fees and Payment.
4.1 Fees. Customer will pay all fees as and when described in the Order Form(s) (the “Fees”).
4.2 Invoicing.
- Osano shall invoice Customer for the Fees in the currency set forth on the applicable Order Form. Unless otherwise stated on the Order Form, all undisputed invoices shall be payable on the schedule provided in the Order Form. Any disputed amounts shall not affect the payment of non-disputed amounts but shall be subject to Section 4.2(B). Customer shall make payments to Osano via the entity and address set forth in the Order Form and any subsequent invoice, either via check, wire, credit card, automated clearing house (“ACH”), or other payment method made available by Osano.
- Should Customer contest any charge on an invoice, Customer must notify Osano, in writing, by the later of: (i) the due date for the invoice and (ii) within thirty (30) days of the date on which the error is first discovered by Customer or should have been discovered by Customer using ordinary reasonable care (but in no event later than ninety [90] days after the invoice date). Customer’s notice of dispute shall include substantiating documentation/a reasonably detailed description of the dispute. Notwithstanding anything to the contrary herein, the uncontested balance of the invoice must be paid by its due date. Customer will be deemed to have accepted an invoice if Customer fails to timely notify Osano of any disputes. Notwithstanding anything to the contrary, the Parties shall continue to perform their obligations pursuant to this Agreement during any such dispute, including, without limitation, Customer’s obligation to pay all due and undisputed invoice amounts.
4.3 Auto-Renewal. Customer agrees and authorizes Osano to issue a recurring charge for Customer’s utilization of the Platform and Services absent termination consistent with Article 6. The total Fees paid by Customer for any renewal term shall not increase by more than five percent (5%) over the total Fees paid by Customer in the previous term for service in the same tier of usage.
4.4 Re-Pricing of Fees and Fee True-Up. In the event it is determined that the Customer’s usage exceeds the quantity set forth in the Order Form, Customer agrees that Osano may adjust the Fees set forth within the Order Form and Customer shall pay any additional Fees commensurate with the actual quantities and prices listed as attached to the Order Form.
4.5 Late Payment. If any undisputed amounts invoiced hereunder as Fees or otherwise are not received by Osano by the due date, then at Osano’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, Osano may suspend Customer’s access to the Services (without waiving the right to terminate for breach under Section 6.3, and/or to pursue any other remedies herein or at law or equity), if any, if Osano has not received the amounts invoiced hereunder at the expiration of the 30 day grace period from the invoice date.
4.6 Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If Osano has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Osano with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Reimbursement of Regulatory Fines or Penalties. Subject to the limitations set forth herein, Osano will reimburse Customer in the event a fine or penalty issued by a Regulatory Agency is actually incurred by Customer if all of the following conditions are met: (i) the fine or penalty is directly attributable to the Osano Platform’s non-compliance with applicable law; (ii) the fine or penalty is caused by Customer’s use of the Osano Platform; (iii) use of the Osano Platform by Customer is authorized by Osano and such use is strictly in accordance with these Terms of Service and the related Documentation; (iv) Customer has an active enterprise level subscription to the Osano Platform, and is not in breach of these Terms of Service or the related documentation; (v) a party other than Osano or its authorized representatives has not customized or altered the appearance, content or performance of any Osano service or product in any way; (vi) a party other than Osano or its authorized representatives has not altered the recommended default settings for the Osano service or product in any way; (vii) Customer notifies the Osano Legal Department at legal@osano.com within 24 hours of receiving any correspondence from the Regulatory Agency inquiring about or investigating Customer’s compliance or noncompliance with any Privacy Regulation related to the Osano Platform; AND (viii) Customer is using all products that Customer has purchased of the Osano Platform (excluding Universal Consent) and has implemented any and all updates or feature enhancements released by Osano related to the Osano Platform in a timely manner; provided, however, Osano shall not be liable to Customer under this section for any fine or penalty to the extent such fine or penalty is caused by the negligent, willful or reckless acts or omissions of or by Customer. Osano’s liability is limited to fines or penalties ultimately issued by a Regulatory Agency that are directly the result of the use of the Osano Platform and does not include any other third-party claims or fees, costs of defending the Regulatory Agency inquiry or investigation, expenses or judgments in any civil actions and/or any punitive penalties due to prior actions or omissions by Customer. Any fine or penalty incurred by Customer that is not directly attributable to the Osano Platform are excluded and will not be reimbursed. OSANO’S LIABILITY UNDER THIS SECTION 4.7 IS LIMITED TO THE LESSER OF THREE TIMES THE FEES PAID BY CUSTOMER TO OSANO IN THE TWELVE-MONTH PERIOD PRECEDING NOTIFICATION OF THE VIOLATION LEADING TO THE FINE OR $200,000. ANY AMOUNT TO BE PAID BY OSANO SHALL BE OFFSET BY THE AMOUNT, IF ANY, OF CUSTOMER’S OWN FIRST PARTY INSURANCE (and Osano shall not be required to pay any amount until Customer has first submitted the claim to its own insurance and pursued and exhausted all reasonable avenues of reimbursement with its insurer first). Osano may, upon written notice to Customer, amend this Agreement to amend or delete this section in its entirety; provided, however, Osano hereby agrees that such notice to Customer will allow Customer to terminate this Agreement immediately (only for thirty days after notice is given to Customer) without either Party incurring liability for such termination, subject to Section 6.4 below. This section applies only to customers with Enterprise level accounts with Osano with an Order Form executed after September 22, 2021.
5. Confidential Information and Security Requirements.
5.1 Confidential Information. Each Party will use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of a like-kind (but in no event less than reasonable care consistent with industry standards) to protect the confidentiality of the other Party’s Confidential Information (defined below). In addition, the receiving Party will not disclose or use any Confidential Information of the other Party for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each Party. Confidential Information includes (i) Each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) Passwords, authorization keys, or codes used to access or operate such system offerings; (iii) Any results, Usage Data, or statistics collected through the use of the system offerings; or (iv) Any nonpublic business information that is either marked physically or identified orally as “confidential” or “proprietary”, or that a reasonable person would understand to be confidential based on the nature of the information and/or the circumstances of the disclosure. For the avoidance of doubt, Customer Information and Usage Data will be the Confidential Information of Customer.
Confidential Information excludes any information that
- was in the receiving Party’s possession before receiving it from the disclosing Party;
- is provided to the receiving Party by a third-party without restriction on use or disclosure and without breaching any rights of the disclosing Party;
- is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving Party; or
- was or is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information.
In the event the receiving Party or any representative of the receiving Party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving Party will (if permitted to do so) provide the disclosing Party with prompt notice of such circumstances, will cooperate (at disclosing Party’s request and expense) with disclosing Party’s reasonable efforts to limit disclosure such as by endeavoring to put in place a protective order, and will in all cases limit such disclosure to the minimum amount of information required to comply with the disclosure obligation.
5.2 Security Requirements. Osano has implemented technical and organizational security measures consistent with the standards, practices, and controls cited in its then-current SOC 2 report. However, Osano cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third-party access to Customer’s account or use, alteration, or disclosure of the Customer Information or Usage Data except in the event of Osano' gross negligence or willful misconduct.
5.3 Multi-Factor Authentication. Users that provide their mobile phone numbers for authentication purposes agree to receive an SMS message as part of the process. Carrier message and data rates may apply.
6. Term and Termination.
6.1 Term of Agreement. This Agreement shall commence on the Service Start Date (the “Effective Date”) and shall continue in effect until all Order Forms have expired or this Agreement has been terminated in accordance with this Article 6 (the “Term”).
6.2 Term of Order Forms. The term of each Order Form shall start on the Service Start Date specified on the Order Form and shall continue for the term specified therein. Except as expressly stated otherwise in an Order Form, all Order Forms shall automatically renew for subsequent one-year renewal periods, unless a Party gives the other Party written notice of non-renewal at least 30 days prior to the end of the then-current term. Upon renewal, Osano reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term.
6.3 Termination for Cause. Either Party may terminate this Agreement for cause (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. No refund shall be issued in the event of termination of this Agreement and/or any Order Form for cause by Osano.
6.4 Effects of Termination. Upon termination of this Agreement for any reason, all Order Forms will automatically terminate and: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by Osano, and (iii) Customer will pay Osano all unpaid Fees owing to Osano. If Customer terminates this Agreement in accordance with Section 6.3, as Osano’s sole obligation and Customer’s sole remedy, Osano will refund to Customer any unearned Fees that Customer paid in advance for the Services relating to periods after termination. If Osano terminates this Agreement in accordance with Section 6.3, then, without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term of each Order Form after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to Osano for the period prior to the date of termination and other obligations that survive termination of this Agreement. At such time that all unpaid Fees owing to Osano have been received by Osano, Osano shall return to Customer all Customer Information and Usage Data in a form to be agreed upon by the parties at no additional charge to Customer.
6.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination, shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 4.1 and Articles 1, 3, 5, and 7-10 shall survive this Agreement's expiration or termination.
7. Warranties and Warranty Disclaimer.
7.1 Mutual Warranties. Each Party represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
7.2 Osano Warranties. Osano warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable Documentation and the functionality of the Services will not be materially decreased during the term of the applicable Order Form; and (ii) the Services do not contain any malicious code or viruses. For any breach of the above warranties, Customer’s exclusive remedy is termination under Section 6.3(i) and those remedies described in Section 6.4.
7.3 Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT, THE CONTENTS OF THIS SECTION 7.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED SECTIONS 7.1 AND 7.2, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, OSANO EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OSANO SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, OSANO DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OSANO OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE SERVICES AND ANY INFORMATION PROVIDED BY OSANO ARE NOT LEGAL ADVICE AND CUSTOMER IS RESPONSIBLE FOR ITS OWN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS.
OSANO DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING USAGE DATA, CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. OSANO DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. OSANO EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION. THE OSANO PLATFORM DOES NOT GIVE LEGAL ADVICE, IS NOT RESPONSIBLE FOR CUSTOMER’S LEGAL COMPLIANCE, AND SHOULD BE CONSIDERED TO BE ONLY AN ANCILLARY SUPPLEMENT TO CUSTOMER’S PRIVACY POLICY, PRIVACY COMPLIANCE PROGRAMS, AND ADVICE FROM CUSTOMER’S LEGAL ADVISORS AND PRIVACY EXPERTS. THE OSANO PLATFORM IS NOT INTENDED FOR USE AS, AND SHALL NOT BE USED AS, CUSTOMER’S SOLE AND EXCLUSIVE PRIVACY COMPLIANCE PROGRAM; INSTEAD THE OSANO PLATFORM MUST BE CONSIDERED ONLY ONE COMPONENT OF A ROBUST PRIVACY PROGRAM THAT SHOULD INCLUDE CUSTOMER’S PRIVACY EXPERTS, ADVICE FROM PRIVACY ATTORNEYS, A LEGALLY COMPLIANT PRIVACY AND COOKIE POLICY, AND OPERATIONS THAT ARE DESIGNED TO AND ACTUALLY DO FULLY SUPPORT THE COMPLIANCE PROGRAM. THE OSANO PLATFORM ALONE IS EXPRESSLY AGREED BETWEEN THE PARTIES TO BE INSUFFICIENT TO ENSURE THAT CUSTOMER IS COMPLIANT WITH PRIVACY REGULATIONS/LAWS.
8. Mutual Indemnification.
8.1 Indemnification by Osano. Subject to Customer’s compliance with Section 8.3, Osano shall defend, indemnify, and hold harmless Customer its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a third-party claim alleging that the use of the Services or Platform as permitted hereunder infringes a valid US patent right or trademark right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by Customer in connection with any such Claim.
Osano will have no liability for any Claim to the extent it arises from:
- a modification of the Platform or Services by or at the direction of Customer or an Authorized User;
- use of the Platform or Services in violation of this Agreement or applicable law;
- use of the Platform or Services by Customer after Osano notifies Customer to discontinue use because of an infringement or misappropriation claim;
- the customer's combination, operation, or use of the Platform or Services with any other software, program, or device not provided or specified by Osano to the extent such infringement would not have arisen but for such combination, operation, or use; or
- Customer’s use of the Platform or Services in a manner that is inconsistent with its intended use.
If a Service has become, or in Osano’s opinion is likely to become, the subject of any such Claim, Osano may at its option and expense:
- procure for Customer the right to continue using the Service as set forth hereunder;
- replace or modify the Service or certain functionalities to make it non-infringing; or
- if options (a) or (b) are not reasonably practicable at Osano’s sole discretion, terminate either this Agreement or the Order Form for such Service.
This Section 8.1 sets forth Osano’s sole liability (and the Customer's sole remedy) regarding infringement or misappropriation of third-party rights.
8.2 Indemnification by Customer. Subject to Osano’s compliance with Section 8.3, Customer shall defend, indemnify, and hold harmless Osano, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a third-party claim relating to, or arising from, Customer Information, or Customer’s breach of Section 2.3 or Section 7.1.
8.3 Indemnification Procedure. The indemnified Party shall (i) promptly give written notice of the claim to the indemnifying Party, although failure to provide prompt notice will not relieve the indemnifying Party of its obligation to indemnify unless the indemnifying Party is materially prejudiced by the delay; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense and request.
9. Limitation of Liability.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
ANY CLAIMS OR DAMAGES THAT ONE PARTY MAY HAVE AGAINST THE OTHER PARTY SHALL ONLY BE ENFORCEABLE AGAINST THE PARTIES TO THIS AGREEMENT AND NOT ANY OTHER ENTITY OR ITS OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS.
THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF OSANO WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE OF THAT PARTY OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10. General.
10.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, without the prior written consent of the other Party, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all exhibits), without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets to an entity that is not a competitor to the other Party. In the event the non-assigning Party determines in good faith that the assignment would be or is to a competitor, such non-assigning Party shall be entitled to terminate this Agreement immediately.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Customer agrees that Osano may disclose that Customer is a customer of the Services in Osano advertising, press, promotion, and similar public disclosures. In addition to the foregoing, Customer hereby grants Osano a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as an Osano customer on Osano’s website.
10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; disease, epidemic, or pandemic; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.6 Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each Party to this Agreement at the time of the amendment, supplement, restatement, or termination.
10.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
10.8 Notices. For communication about Customer’s account and services associated with Osano, Osano may email Customer or contact its Authorized Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that Osano shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Osano must be delivered by email to legal@osano.com with a duplicate copy sent via registered mail to the following address: Osano Inc., 3800 N. Lamar Blvd, Suite 200, Austin, Texas 78756; Attention: Legal. This contact information provided may be updated by giving notice in accordance with this Section 10.8.
10.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise or delay in exercising any right or remedy under this Agreement will be deemed a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the Federal Arbitration Act (as set forth in Section 10.11), and to the extent not inconsistent therewith the laws of the State of Delaware. For any matter which is not subject to arbitration, each of the Parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in New Castle County, Delaware, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any arbitration, order or any judgment of such federal or state courts, such personal jurisdiction shall be nonexclusive. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY).
10.11 Binding Arbitration.
It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Travis County, Texas, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Commercial Arbitration Rules’ expedited procedures for resolution. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, shall follow the law. The arbitrator shall issue a written award supported by a statement of decision setting forth the arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.
No Class Relief. The arbitration can resolve only Customer’s and/or Osano’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
With the exception of the paragraph of this Section entitled “No Class Relief”, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the “No Class Relief” subsection is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Party shall be entitled to arbitrate their dispute and must instead bring any claims in a court of competent jurisdiction.
10.12 Entire Agreement. The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and this Agreement is binding upon the Parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms of an Order Form, the provisions of the Order Form shall prevail. The terms of this Agreement will apply to all orders submitted to Osano and shall supersede any additional terms that may be incorporated in a purchase order form or any other Customer-generated form. Any such Customer terms shall be null and void, even if Osano signs such form.