opvizor® Subscription Agreement
IMPORTANT – READ CAREFULLY
This Subscription Agreement (hereinafter the “Agreement”) is a legal agreement between you (either an individual or a legal entity) and opvizor Inc. for the provision by opvizor® of Software as a Service
(hereinafter the “Services”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY USING THE SERVICES. IF YOU DO NOT AGREE, DO NOT USE THE SERVICES.
1. Subject Matter
Subject matter of this Agreement is the provision of the Services by opvizor and the use of such Services by you over the internet.
2. Per VMware ESX Host License
The Services are licensed per VMware ESX Host. This means that each VMware ESX/or ESXi Host being analyzed by the Services must be licensed in acquiring a respective subscription for opvizor®. When connecting the opvizor® Service to VMware vCenter, all managed VMware ESX/ESXi Hosts within VMware vCenter needs to be licensed. If you don´t use VMware vCenter at all, you can license single VMware ESX/ESXi Hosts. You may use the Services on any computer, as long as the use of the Services is fully licensed.
3. Provision of the Services
opvizor will provide the Services in regards to any active subscription which you have acquired and maintain. The specifications, functionalities, requirements, service levels and availability of each subscription are described and defined on the web page provided by opvizor for the respective subscription. opvizor may – to a reasonable extent – change such specifications, functionalities, requirements, service levels and availability unilaterally by giving you notice either on opvizor’s online portal or by e-mail to the address registered for your user account. The Services are provided at the router of opvizor data center. Any costs for the telecommunication connection are borne by you and are not included in the subscription fee. opvizor is therefore not responsible if the Services are unavailable due to connection failures or interruptions.
4. Use of the Services
You are granted the non-exclusive, non-transferable right to use the Services for your internal purposes and in compliance with this Agreement for the duration of your active and paid subscription. The Services may only be used in connection with the online interface provided by opvizor® accessible with standard web browsers complying with the then current requirements as outlined by opvizor on the corresponding web page. This Agreement does not entitle you to access the software used for the provision of the Services in any other way nor does it entitle you to a copy of such software. Any software that might be provided by opvizor® for the use of the Services may only be used in compliance with this Agreement and in combination with the Services, solely to the extent required to use the Services. Any illegal use of the Services or use for illegal purposes is strictly prohibited. You acknowledge to fully indemnify opvizor for any costs and liabilities resulting from any illegal use of the Services by you or through your subscription or account. opvizor may delete any data that is illegal or that opvizor suspects to be illegal without notice. You agree to keep your password confidential and to protect it from unauthorized access by third parties. You remain fully responsible for any actions taken through your account. You may copy or print any documentation provided by opvizor® online for an active subscription for the purpose of using the Services, provided that you do not remove any copyright notices and that you limit the number of copies to a reasonable amount. A subscription does not entitle you to a printed copy of the respective documentation. In case of material breaches of these license terms by you or through your subscription or account, opvizor is authorized at its own discretion to block any access to your account indefinitely.
5. Data Storage
opvizor® will provide you with the data storage capacity for use with the Services as determined by your active subscription(s). Depending on the type of your subscription, opvizor® might only store such parts of the data uploaded by you that are required for the respective Services. Data storage provided by opvizor® may not be used for backup purposes. You are solely responsible to back up your data on your own system. If any data is lost on opvizor® servers, opvizor shall not be responsible to recover any data and opvizor shall not liable for any costs incurred to you for restoring the data on opvizor® servers. opvizor® is not responsible for the quality of the stored data. You agree to only upload data from computers that are protected by a state of the art anti-virus program and to scan the data to be uploaded for viruses and other malware prior to any upload. Data storage is provided to you by opvizor® on a “fair use” basis, meaning that the data storage is limited to ten times the amount of the average data storage usage for the respective subscription type. If your data storage quota is reached, opvizor will contact you to negotiate an up pricing or a limitation of your data storage quota. opvizor® will not delete any data associated with an active subscription. When a subscription is about to expire or terminate, you are responsible to download any data stored before the expiration or termination of the subscription. After expiration or termination of any subscription, opvizor is authorized to delete any data associated with the expired subscription after 10 days of the subscription’s expiration or termination. You expressly agree that any data uploaded by you may be stored by opvizor® i) on any third party provider system, ii) in a shared environment (e.g. cloud architecture) and iii) without any restrictions in regards to the country where such data is stored. opvizor® is fully committed to the security and privacy of your uploaded data (files and database content): a) all file data and metadata transmissions occur over an encrypted channel (HTTPS/SSL); b) all files stored on opvizor® servers are encrypted (AES-256); c) the opvizor® website includes state-of-the-art features against external attacks and intrusion; and d) the online access to your data requires your username and password, subject to the provisions of section 6 of this Agreement.
6. Data Sharing
Depending on the type of subscription, the Services may include the possibility to share stored data with other users who maintain an active subscription. In that case, you are given the option to share certain data with other users. Should you make use of this option by selecting the respective settings, opvizor® is authorized to grant the selected user(s) access to your data. You are solely responsible for keeping the online settings of your account up to date.
7. Re-Use of Data by opvizor®
You expressly agree that opvizor may include your uploaded data in its internal statistics and analysis databases and to freely use such data, including for the provision of services to other customers of opvizor®. However, any such data or parts thereof disclosed to any third parties (other than employees or subcontractors of opvizor) shall not be identifiable as your data, except as provided in section 6 of this Agreement. opvizor®’s right to use uploaded data as specified herein shall not be limited to the duration of an active subscription and shall also extend to any data subsequently deleted by you, except to the extent that you expressly instruct opvizor to delete all copies of your personal data or parts thereof.
8. Subscription Fees
opvizor will provide subscriptions either for free (hereinafter “Free Subscription”) or for a subscription fee as listed by opvizor online at the time of conclusion of such a subscription (hereinafter “Paid Subscription”). Services for Paid Subscriptions will only be provided after payment of such subscription fees according to the chosen payment plan, including the selected billing cycle. The initial subscription fee shall be due immediately after signing up for the respective subscription and any recurring subscription fees shall be due at the last day of the preceding billing cycle. In case of multi-year subscriptions, the subscription fee for the first year of the subscription shall be due immediately after signing up for the respective subscription and the fees for the remaining subscription years shall be due on an annual basis to the end of the respective subscription year. Notwithstanding the aforementioned provision regarding invoicing of multi-year subscriptions, if you are subscribing to a multi-year subscription, opvizor is irrevocably entitled to the fees for the whole duration of the subscription. opvizor may convert a Free Subscription into a Paid Subscription at any time. Subscribing to a Free Subscription does not grant you the right to use the associated Services indefinitely. If you are paying by credit card, you agree that opvizor may i) store your credit card data and ii) automatically issue payment of subscription fees at the respective due date by using such stored credit card data. In case of non-payment of any due subscription fees, opvizor may block any access to the Services until payment is received.
9. Copyright and Ownership
. The software used for the provision of the Services is owned by or licensed to opvizor and is protected by copyright laws and international treaty provisions. You acquire only the non-exclusive right to use the Services as permitted herein and do not acquire any other rights (e.g. ownership in the software used).
Free Subscriptions are provided without any maintenance services. opvizor maintenance services for Paid Subscriptions (“Maintenance”) consist of updates, patches and fixes to the software used to provide the respective Services, when and if they become available, and e-mail support. Any updates, patches, fixes or other items provided as a part of Maintenance will automatically be licensed to you under this Agreement. opvizor will provide e-mail support on a best effort basis only. Any further warranty regarding Maintenance is expressly excluded.
11. Limited Warranty
Free Subscriptions are provided “as is” without any warranties of any kind. For Paid Subscriptions, opvizor warrants that the Services will perform substantially in accordance with the documentation when used under the recommended configuration. Non-substantial variation of performance from the documentation does not establish a warranty right. opvizor does not warrant that the Services are free from any error, that they will operate without interruption or that they will be compatible with any configuration. All warranty claims must be made within ninety (90) days of the conclusion of the affected subscription. If the Services do not perform as warranted, the entire liability of opvizor and your exclusive remedy shall be limited to either, at opvizor’s option, the replacement of the Services or the refund of the subscription fees paid to opvizor for the affected Services. THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY opvizor AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR opvizor’s BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY opvizor PROVIDES THE SERVICES “AS IS” AND WITH ALL FAULTS AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
12. Limitation of Liability
TO THE EXTENT ALLOWED BY LAW, OPVIZOR SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF OPVIZOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Duration / Termination
This Agreement and your license to use the respective Services including Multi-year subscriptions shall commence with the day of the conclusion of a subscription, shall be effective for one year and shall be renewed automatically for one additional year unless it is terminated by you or by opvizor by giving a written notice 30 days prior to the date of ending. Renewed subscriptions shall be valid and active at the subscription fees applicable at the time of renewal. opvizor may at its own discretion terminate Free Subscriptions at any time by giving you notice. opvizor may furthermore immediately terminate any Paid Subscriptions by giving you such notice if you breach any of your obligations set out in this Agreement. Upon termination, you shall cease using the affected Services and opvizor will block your access to such Services. As agreed in section 5 of this Agreement, you are solely responsible for the retrieval of any data uploaded to opvizor® servers and opvizor® shall not be obliged to deliver or transfer any data to you at the expiration or termination of a subscription. You acknowledge that, independent of the reasons for the termination of this Agreement, any reimbursement for fees paid by you to opvizor in regards to the subject matter of this Agreement is excluded. All disclaimers of warranties and limitations of liability shall survive any termination of any subscriptions.
You agree to fully comply with all applicable laws and regulations regarding export restrictions (“Export Laws”) to assure that neither the Services nor any direct products thereof are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical or biological weapons production.
Unless stated otherwise in this Agreement, any notices under this Agreement shall be made in writing or by e-mail to the address registered for your account (in case of a notice to you) or the address listed on the applicable web page of opvizor (in case of a notice to opvizor®).
You are not allowed to assign your account or any subscription to any third party without opvizor’s prior written consent.
17. Data Privacy
18. Complete Agreement; Governing Law; Jurisdiction
This Agreement constitutes the complete agreement between the parties with respect to the Services and is governed by the laws of Austria (other than its conflict of law provisions). The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not be applicable. Place of jurisdiction shall be Houston, TX, USA.