TOS - OpenKM Cloud Terms of Service
Version 2.0, latest update october 2015
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING AND/OR OTHERWISE USING THE OPENKM CLOUD SERVICE (“THE SERVICE”). THE SERVICE IS SUBJECT TO THE TERMS AND CONDITIONS OF USE SET OUT BELOW. BY ACCESSING OR OTHERWISE USING THE SERVICE THE USER AGREES AND IS DEEMED TO HAVE AGREED TO OBSERVE ALL THE TERMS & CONDITIONS OF USE.
OpenKM Cloud Services Agreement, including the documents located at URLs (the "Agreement") is between OpenKM Knowledge Management S.L. , a Spanish corporation (“OpenKM”), and the user of OpenKM software and services who accepts the terms of this Agreement ("You"). The effective date of this Agreement (“Effective Date”) is the earlier of the date that You sign or accept this Agreement or the date that You use OpenKM’s software or services.
If you are acting on behalf of a corporate entity, you hereby represent that you are authorized to bind such corporate entity. If you do not wish to be bound by these terms and conditions do not access or use the Service.
These terms and conditions represent an agreement entered into between yourself and OpenKM Knowledge Management S.L. ("OpenKM"). OpenKM reserves the right, in its sole discretion, to modify these terms or the Service fees at any time, effective upon the date OpenKM posts revised terms or fees on its web site. Your continued use of the Service constitutes your binding acceptance of these terms including any changes or modifications that OpenKM may make.
1. Scope of Agreement
This Agreement covers the terms and conditions for Your use of the cloud-based content management services ("Cloud Services"), which may include software and related materials ("Cloud Software") made available by OpenKM.
2. General Conditions of Use
2.1 Third Party Use.
If You provide third parties with access to Content (defined in Section 3.1) and/or the Cloud Services, You are responsible for any third party that you have authorized to access to the Cloud Services and You will be deemed to have made any action that You permit, facilitate or assist the third party in taking relating to this Agreement, Content or use of the Cloud Services.
2.2 Your Use and Compliance with Terms
You agree to use the Cloud Services in accordance with all applicable laws and regulations, the Acceptable Use Policy and this Agreement. If OpenKM has reason to believe that You have breached this Agreement or the Acceptable Use Policy, OpenKM or its designated agent may inspect Your use of the Cloud Services, Content and records, to verify Your compliance with this Agreement. OpenKM will give You written notice of any non-compliance and You agree to remedy Your non-compliance immediately. If Your non-compliance is not remedied within two business (2) days, OpenKM may suspend or terminate Your access. OpenKM may terminate Your access immediately if it reasonably believes Your use of the Cloud Services violates any law (civil or criminal), order or regulation in any country.
3. Fees and Payment
Fees for the Cloud Services (the "Fees") will be identified in an Order Form and are based on the number of Users, the amount of storage, and other services provided by OpenKM. An "Order Form" is either signed by the parties or otherwise accepted by OpenKM and may consist of (a) a mutually agreed order form or (b) an order placed by You through OpenKM’s online store accessible from an OpenKM website. A "User" is an individual employee, agent, independent contractor or consultant of Yours who has a company email address and is authorized or otherwise designated or permitted by You to access and use the Cloud Services pursuant to this Agreement. Fees are (a) due upon OpenKM’s acceptance of an Order Form or, for renewal of the Cloud Services, at the start of the renewal
term, and (b) payable in accordance with Section 3.2. Fees are stated in the currency set forth in the applicable Order Form and must be paid in such currency. You agree to pay OpenKM the applicable Fees for all Users.
If You desire credit terms with respect to the payment of Fees, you agree to reasonably cooperate with OpenKM to establish and review Your credit-worthiness. If credit terms are provided to You, OpenKM will invoice You for the Fees upon acceptance of the applicable Order Form and up to thirty (30) days prior to the start of any renewal term. You agree to pay the Fees no later than thirty (30) days from the date of each invoice. Any and all payments made by You pursuant to this Agreement are non-refundable except as otherwise provided in this Agreement. OpenKM reserves the right to suspend the Cloud Services and/or change its credit terms if actual payment has not been received within thirty (30) days of the invoice date.
All Fees are exclusive of Taxes. You will pay OpenKM an amount equal to any Taxes arising from or relating to this Agreement or an applicable Order Form which are paid by or are payable by OpenKM. "Taxes" means any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of OpenKM. If You are required to withhold or deduct any portion of the payments due to OpenKM, You agree to increase the sum payable to OpenKM by the amount necessary so that OpenKM receives an amount equal to the sum it would have received had You made no withholdings or deductions.
"Content" means any file, data, material or other information, including without limitation, audio and/or visual files, text, images, documents, spreadsheets, hyperlinks, web form entries, text messages, web pages and any other similar file, data, material or other information not provided by OpenKM. You (a) agree to use Content in compliance with this Agreement and the Acceptable Use Policy; (b) are solely responsible for the use and deployment of Content in connection with the Cloud Services; (c) represent and warrant that You own all rights in, or have received a valid license to use, the Content, which rights or license are sufficient to enable Your use of the Cloud Services and that any use by You and OpenKM in providing the Cloud Services does not infringe the intellectual property rights of any third party; (d) further represent and warrant that use of Content by You and OpenKM in connection with the Cloud Services is lawful; (e) are solely responsible for compliance with the Acceptable Use Policy, this Agreement and all applicable laws and agree to remove immediately any Content that violates the Acceptable Use Policy, this Agreement or any applicable law; and (f) are responsible for maintaining licenses and adhering to all license terms applicable to any Content used by You or OpenKM. OpenKM will not be responsible under any circumstances for any claims, damages or other actions relating to Content or Your actions while using the Cloud Services.
You must immediately respond to any notice You receive claiming that Content violates a third party’s rights, including notices under the Digital Millennium Copyright Act and to take corrective action, including but not limited to promptly removing any such Content.
4.2 Your License to OpenKM
You grant to OpenKM, and any third party service provider on whose services OpenKM may depend to provide the Cloud Services, a perpetual, worldwide, non-exclusive, non-transferable, royalty-free license to make, use, reproduce, prepare derivative works, distribute, perform and display Content for the purpose of providing the Cloud Services. Except as set forth in this Section, OpenKM doesn't obtain any right in Content under this Agreement.
5. Data Privacy and Security
5.1 Data Transfer
You acknowledge and agree that to provide the Cloud Services it may be necessary for Content or other information to be transferred between OpenKM, its affiliates, and/or subcontractors, which may be located worldwide.
Our privacy statement is located on our Web site at www.openkm.com("Privacy Statement") and is incorporated herein by reference. The privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our web site at least thirty (30) calendar days before it becomes effective. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
The Cloud Services may not be used to store, handle or process any personally identifiable information (including, but not limited to healthcare or financial information) pertaining to You or any third parties. Such information and data should not be uploaded to the Cloud Services.
5.3 Legal Process
OpenKM may provide information, including Content and information concerning Your account, as required by law (such as responding to a subpoena, warrant, audit, or agency action, or to prevent fraud) or to establish or exercise its legal rights or defend against legal claims. OpenKM will not be liable for any use or disclosure of such information to such third parties.
6. Scope of Cloud Services
OpenKM will provide reasonable customer support service via an online support service. All Support Services will be limited to issues surrounding the issuance of usage of features of the Service.
The Support Services will be provided only to a single individual who is designated by you as your "Administrator". OpenKM will not provide support to your end users and you are responsible for all such support.
The detailed SLA - OpenKM Support Service Level Agreement .
OpenKM intends to periodically update, improve or modify certain functionality associated with the Cloud Services. OpenKM reserves the right at any time to change and/or discontinue any or all of the features or functionality of the Cloud Services. OpenKM does not commit to deliver any new products, features or functionality for general availability.
6.3 Service Levels
The Cloud Services are generally provided through internet connectivity and third party service providers that OpenKM does not control and may be subject to delays, outages or other problems. OpenKM is not responsible for any such delays or outages.
7. Intellectual Property
The OpenKM and third party trademarks, logos, trade names and service marks ("Marks") displayed as part of the Cloud Services are the property of OpenKM, its affiliates, or other third parties. You are not permitted to use these Marks without the prior written consent of OpenKM, its affiliates, or the third party trademark owner.
7.2 Rights in Services
You agree that OpenKM and its licensors own all legal rights and interests, including intellectual property rights, in the Cloud Services. OpenKM grants to You a non-transferable, non-exclusive, limited, revocable license to use the Cloud Services as contemplated under this Agreement. You only acquire the right to use the Cloud Services and do not acquire any rights of ownership in the Cloud Services.
You will not (a) sublicense, sell, rent, distribute, assign or otherwise transfer the
Cloud Services; (b) reverse engineer, decompile or disassemble the Cloud Services except to the extent such conduct is permitted under applicable law notwithstanding this restriction; (c) remove or modify any of the copyright, trademark or other proprietary notices contained in the Cloud Services; (d) modify or create derivative works of the Cloud Services; or (e) use the Cloud Services to create products or services that compete with any of the Cloud Services. OpenKM reserves all rights to the Cloud Services not expressly granted herein.
7.3 Rights in Software
No license to the Cloud Software is being granted under this Agreement. OpenKM and its licensors will own all right, title, and interest to the Cloud Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof.
8. Term and Termination of Agreement
The term of this Agreement begins on the date the Order Form is executed and continues for the term stated in the Order Form. Thereafter, the term will automatically renew for successive terms of the same duration as the initial term, unless either party gives written notice to the other of its intention not to renew at least thirty (30) days before the commencement of the next renewal term. If You or OpenKM materially breaches the terms of an Order Form, and such breach is not cured within thirty (30) days after written
notice of the breach is given to the breaching party, then the other party may, by giving written notice of termination to the breaching party, terminate the applicable Order Form and/or this Agreement. Without limiting other rights OpenKM may have, OpenKM may suspend Your use of the Cloud Services upon five (5) days written notice if You have breached this Agreement, the Acceptable Use Policy or applicable law. Following termination or expiration of this Agreement, You will no longer be able to access or use the Cloud Services. If this Agreement expires or is terminated for any reason, the following sections will survive such termination or expiration: 3, 4.2, 7.
9. Disclaimer of Warranties
You understand and agree that the Cloud Software and Cloud Services may contain bugs, errors and/or inadequacies. OpenKM is not liable and will not be held accountable for any loss of Your data. FOR ALL CIRCUMSTANCES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES PROVIDED BY OPENKM ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. OPENKM DOES NOT GUARANTEE THAT THE USE OF THE CLOUD SOFTWARE OR CLOUD SERVICES WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE OR THAT OPENKM
WILL CORRECT ALL SOFTWARE OR SERVICE ERRORS. You agree that you are solely responsible for the results obtained from the use of the Cloud Software and Cloud Services.
9. Limitation Of Liability And Disclaimer Of Damages
9.1 Disclaimer of Damages
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL OPENKM OR ITS AFFILIATES BE LIABLE TO YOU OR YOUR AFFILIATES FOR DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY CONTENT, TERMINATION OF YOUR ACCOUNT, ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF OPENKM OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
9.2 Limitation of Liability
FOR ALL EVENTS AND CIRCUMSTANCES, OPENKM AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY OPENKM FROM YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT OPENKM’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD.
You agree to indemnify and hold harmless OpenKM, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and associated litigation expenses) arising out of or relating to: (a) Your use of the Cloud Services (including any Cloud Software); (b) Your breach of this Agreement or the Acceptable Use Policy, or violation of applicable law by You or any third party You permit to use Your account, (c) Content or the combination of Content with other applications, content or processes, (d) any claim or allegation that Content infringes or misappropriates the intellectual property rights of any third party, or (e) OpenKM’s response to any third party subpoena, warrant, audit, agency action or other legal order or process concerning Content, Your account and/or use by You of the Cloud Services and Cloud Software. OpenKM will provide You with written notice of any claim, suit or action, but its failure to do so does not relieve You of Your obligations under this section.
11. Export Control
OpenKM may supply You with software, services and/or technical data that is subject to export control restrictions (the “Export Control Laws”). You agree to comply with all applicable Export Control Laws and agree not to use the Cloud Services or Cloud Software if You are barred from receiving them under any of the Export Control Laws. OpenKM will not be responsible for Your compliance with the Export Control Laws.
12. Publicity and Benchmarking.
You may not misrepresent your relationship with OpenKM nor suggest or publish that OpenKM or any of its affiliates or licensors endorses, sponsors, contributes to or provides support for Content or You. You may not publish the results of any benchmarking studies that You conduct in connection with the Cloud Services unless You obtain OpenKM’s prior written approval.
13.1 Governing Law
The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with Spanish law without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably agrees that the courts of Spain will have exclusive jurisdiction to settle any dispute or claim that arises from or in connection with this Agreement.
This Agreement is binding on the parties to this Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by either party only with the other party's prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, OpenKM may assign this Agreement pursuant to a merger or a sale of all or substantially all of its assets or stock.
13.3 Third Party Rights
Except for OpenKM’s affiliates as expressly provided in this Agreement, a person who is not a party to this Agreement will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement. This section does not affect any right or remedy of any person which exists, or is available, other than pursuant to the Act.
13.4 Independent Contractor
OpenKM is an independent contractor and nothing in this Agreement or related to OpenKM’s performance will be construed to create an employment or agency relationship between You (or any of Your personnel) and OpenKM (or any OpenKM personnel). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits.
13.5 Entire Agreement
13.6 Force Majeure
Neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts, omissions laws or regulations, labor strikes or difficulties, communications systems breakdowns or failure of the Internet, hardware or software failures (other than those attributable to the party hereto that has failed to perform hereunder), transportation stoppages or slowdowns or the inability to procure supplies or materials. If any of these causes continue to prevent or delay performance for more than 14 days, the affected party may terminate this Agreement, effective immediately upon written notice to the other party. Notwithstanding the foregoing, this Section shall not apply to requirements to make payments.
If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
This Agreement may only be amended or modified in a writing signed by the parties, which writing makes specific reference to this Agreement.
Use of Service
Upon payment of the applicable fee, you will be provided with access to the Service. You will be entitled to activate a number of user accounts on the server against payment of the applicable contract fees in respect of the number of user accounts requested. You and/or your employees will be entitled to access and use the Service solely on your behalf.
Additionally, you agree that the administrative contact for any services provided to you (including, but not limited to, software registration and activation services) is your agent with full authority to act on your behalf with respect to such services, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such services, or purchase additional services.
You agree that your use and access to the Service will at all times be in accordance with all applicable laws and regulations of application and applicable to such use and access of the Service. The Service is provided by OpenKM to you subject to the condition that you hereby undertake not to abuse or make fraudulent use of the Service, which abuse or fraud will include any illegal or unlawful activity, the collection, development or distribution of malicious code; hacking or cracking activities; the uploading of pornographic and/or copyright protected material and/or material that infringes any other person’s rights.
Excluding maintenance periods and downtime, you may electronically access and use the Service 24-hours a day, 7-days a week.
OpenKM reserves the right to restrict, suspend or terminate your access to and/or use of all or any part of the Service at any time and for any reason valid in law. OpenKM's goal is to ensure timely activation of the Service; however, OpenKM cannot and does not guarantee that activations will be processed within specified timeframes.
OpenKM will not be liable, and you will not be entitled to a refund, for service outages, including, but not limited to those caused by or related to maintenance issues, servers, the technology that underlies the Service, failures of OpenKM direct or indirect service (including, but not limited to, telecommunications, hosting and power), computer viruses, natural disasters or other destruction or damage to OpenKM facilities, acts of nature, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, third party interference or other causes beyond OpenKM's reasonable control.
To access or use the Service or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or pass phrase. You authorize us to process any and all account transactions initiated through the use of your login name, account number, password and/or pass phrase. You are solely responsible for maintaining the confidentiality of your login name, account number, password and pass phrase. You must immediately notify us of any unauthorized use of your login name account number, password or pass phrase, and you are responsible for any unauthorized activities, charges and/or liabilities made on or through your login name account number, password or pass phrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or pass phrase or security authentication option.
You agree that, if your agent, (e.g., your administrative contact, Internet Service Provider, employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
Right of refusal
OpenKM, in its sole discretion, reserve the right to refuse to open an account or provide you with access to the Service. In the event we do not open an account or provide access to the Service, we agree to refund any applicable fee(s) you have paid. You agree that we shall not be liable to you for loss or damages that may result from our refusal to open your account or provide access to the Service.
Term of Agreement
This Agreement will commence on the date you register for the Service and will continue for the duration of the contract provided that all applicable fees in respect of the number of end users elected by you to make use of the Service have been paid. OpenKM also reserves the right to terminate this Agreement earlier for any reason valid in law or in terms of this Agreement. In particular, if you fail to pay fees due and owing, you will immediately be denied access to and/or use of the Service.
Fees and Taxes
As consideration for the granting of access to the Service, or, if applicable, upon receipt of your invoice from OpenKM. All fees are due immediately and are non-refundable. The fees for the Service are based on the number of end users you have been granted or on particular contitions specified in the purchase contract.
All fees include taxes where applicable. If OpenKM is required to pay any sales, use, GST, VAT, or other taxes in connection with the Service, other than taxes based on OpenKM's income, such taxes will be billed to and paid by you.
Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal.
You agree to: (1) provide certain true, current, complete and accurate information about you as required by the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate. We rely on this information to send you important information and notices regarding your account and our services.
OpenKM and its licensors shall own all right, title and interest to the Service and the Software, technology, information, code or documentation provided to you in terms of this Agreement, including all portions, copies or modifications thereof. Except as expressly provided herein, no licences of any kind are granted hereunder, whether by implication, estoppel or otherwise.
The Service and Software is owned by OpenKM and/or its Licensors and is protected by Spanish copyright laws and any applicable international treaty provisions. You may not remove any copyright notices from any copy of Software or other materials which are provided to you when using the Service.
Disclaimer of Warranty
OPENKM PROVIDES THE SERVICE "AS IS" AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR TITLE. YOU ACKNOWLEDGE THAT OPENKM HAS NOT REPRESENTED OR WARRANTED THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY. YOU ACKNOWLEDGE THAT OPENKM HAS NOT REPRESENTED THAT THE SERVICE WILL PREVENT ALL UNAUTHORIZED USE OF YOUR SOFTWARE PRODUCTS. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY RESPECTING THE SERVICE BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES BY ANY OTHER OPENKM CUSTOMER OR USER OF THE SERVICE.
Limitation of Liability
IN NO EVENT WILL OPENKM OR ITS LIABILITY TO YOU ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO ACCESS THE SERVICE. IN NO EVENT WILL OPENKM HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOST BUSINESS OPPORTUNITIES OR PROFITS, FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER OPENKM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. OpenKM and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data misdelivery; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or our web site; (8) loss or liability from your inability to use the Service; (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your account record or your agent's failure to pay any fees, including the initial registration fee or re-registration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in SSL, HTTPS, or any other standard not under LO's sole control, or relating to customer-requested generation and transmission of a subscriber's private key.
Security and Copy Protection
OpenKM shall have reasonable protection in place to minimize the risk of data or information becoming lost or accessed in an unauthorized manner while you are using the Service. OpenKM does not guarantee the security of the Service and OpenKM will not be responsible in the event of any infiltration of its security systems. You acknowledge that all security and copy protection systems are inherently fallible.
Third Party Control
The flow of data over the Internet depends in large part on the performance of connections and services provided by third parties. Failure of these parties to perform their services correctly can disrupt Internet sessions. OpenKM cannot guarantee such events will not occur, and disclaims any and all liability, claims or losses resulting from or relating to such events.
You acknowledge that, in providing the Service, OpenKM could rely upon information, instructions and services from you, your employees and agents and other third parties. You fully assume the risk associated with errors in such information, instructions and services provided that OpenKM has accurately transmitted data and/or complied with your instructions.
Relationship of Parties
You and OpenKM are independent parties. Nothing in this Agreement shall be construed as making you an employee, agent or legal representative of OpenKM.
No Third-Party Beneficiaries
There are no third-party beneficiaries of this Agreement.
This Agreement will be governed by the laws of Spain and you submit to the jurisdiction of the courts of Spain.
OpenKM may include your company name in a list of Service customers and reference you as a customer.
This Agreement constitutes the complete and entire understanding and agreement of all terms, conditions and representations between you and OpenKM with respect to the Software and Service and may be modified only in writing by both parties. No term or condition contained in your purchase order will apply unless expressly accepted by OpenKM in writing. Failure to prosecute a party's rights will not constitute a waiver of any breach.
If any provision of this Agreement is found to be invalid, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full effect.
You may not rent, lease, or lend the Service or Software. You may NOT permanently or temporarily transfer ANY of your rights under this Agreement to any individual or entity. You may assign or transfer (by law or otherwise) your rights hereunder to another, person entity or affiliate company only having first obtained written consent from OpenKM. You acknowledge that OpenKM owns all right title and interest to the Service and Software.