OPSTARTS TERMS OF SERVICE
Welcome to Opstarts services, owned and operated by Opstarts, Inc. (hereinafter “Opstarts”, “we”, “our” or “us”). Opstarts provides business modeling, planning, and forecasting services available through https://opstarts.com (“Websites”). Opstarts offers both free services and fee-based services. More information on these offerings can be found on the Website at https://www.opstarts.com.
1. Acceptance of Terms.
Your use and/or purchase of any Opstarts service (“Service”), whether fee-based or offered for free on our Website, is subject to these Terms of Service (“Terms of Service”). Please read these Terms of Service carefully before accessing or using the Services. If you are an individual accepting these Terms of Service on behalf of an entity Customer, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these Terms of Service; (ii) you have read and understand these Terms of Service; and (iii) you agree, on behalf of the party that you represent, to these Terms of Service. If you do not have the legal authority to bind your employer, please do not use the Services. From time to time, Opstarts may update the functionality and user interface of the Services, add new features to the Service, change the access configuration for the Services or update the related software. In such event, these Terms of Service shall also apply to any upgrades or updates subsequently provided by Opstarts for the Services or related software. If you do not accept and agree to be bound by these Terms of Service, you are not authorized to access or otherwise use the Services.
2. Modification of Terms of Service.
These Terms of Service may be changed, modified, supplemented or updated by Opstarts from time to time. Any updates to the Terms of Service will be in effect for any new or renewal Service orders for purchased Services placed after the effective date of such updated Terms of Service. If Opstarts makes a material change to these Terms or Service that will affect an existing Service subscription, Opstarts may notify you by sending an email at least thirty (30) days in advance of such change or posting a notice on your account administration page. If the change has a material adverse impact on you and you do not agree to the change, you must so notify Opstarts via [email protected] within thirty days after receiving notice of the change. If you notify Opstarts as required, then you will remain governed by the Terms of Service in effect immediately prior to the change until the end of your current subscription term for the affected Service. If the affected purchased Service is renewed, it will be renewed under Opstarts’ then current Terms of Service. For free Services, you will be bound by any changed, modified, supplemented or updated Terms of Service if you choose to continue to use such free Services after such changes to the Terms of Service are posted.
3. Account Management/Passwords.
To purchase, use or access certain Services, you must have a valid Opstarts account. You will be prompted by our Website or contacted by email to either create an account or to login using your account credentials for such Services. If you have been given the option to open an account within the Services that will provide you with access to password protected portions of the Services and you elect to do so, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form, and choose a password and user name. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to immediately notify Opstarts upon learning of any unauthorized use of your account or any other breach of security.
- Types of Services. Opstarts offers some Services (e.g., Opstarts Core and Pro) for purchase through online purchase on its Websites (“Online Purchases”) or for free through the free trial option on its Websites (“Free Trial”).
- License Grant. If you purchased a Service or enrolled in the Free Trial, Opstarts grants to you, and you accept, the non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access and use the applicable Service only as authorized in these Terms of Service and related documentation as described on the Website for the duration of the subscription term and for the usage limits as described in the applicable subscription details.
5. Online Purchases.
- Payment Terms. For Online Purchases of Services: You expressly agree that Opstarts is permitted to invoice and charge your credit card or accepted payment account the applicable fees, any applicable taxes and any other charges that you may incur with Opstarts in connection with your use of the Services and that such fees, taxes and related charges will be billed to the credit card or accepted payment account that you provide at the time a fee or charge is due and payable.
- You agree to allow Opstarts, or our payment affiliates or services providers, to process/or store your payment information.
- If payment is not received or cannot be charged to your credit card or accepted payment account for any reason in advance of the applicable subscription period, Opstarts reserves the right to either suspend or terminate your access to the Service, and at Opstarts’ sole discretion, terminate these Terms of Service.
iii. All fees are payable in U.S. Dollars and are based on Services purchased and not on actual usage. All fees are non-refundable.
- The prices do not include any taxes and you shall pay any applicable sales use, excise, withholding or other taxes applicable to sale or furnishing of the Services or related Software. If sales tax is applicable, we will either (i) collect and remit such tax to the relevant State authority or (ii) you are responsible for paying this tax directly to the relevant authority.
- Renewal Terms. You acknowledge and agree that Opstarts will charge your credit card or accepted payment account on record with Opstarts for the then-current subscription period upon the commencement of any renewal period.
- Your Option to Terminate. For Online Purchases, you may terminate your subscription to the Services at any time and if you terminate prior to the next renewal period you will not be obligated to pay any additional fees for upcoming subscription renewal periods but any subscription fees that you have paid in advance will not be refunded.
6. Service Termination and Suspension.
- Termination. Opstarts may terminate access to all or any part of the Services and terminate these Terms of Service, in the event you commit a material breach of any provision of these Terms of Service which is not cured within thirty (30) days of written notice from Opstarts.
- Suspension. Opstarts reserves the right to suspend Services as it may deem appropriate in response to actual or suspected violations of these Terms of Service if Opstarts reasonably concludes that your Service is being used to engage in illegal activity, used outside the scope of the license (e.g. used in excess of usage limits purchased) or causing immediate, material and ongoing harm to Opstarts or others. You agree that Opstarts shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section 6.b.
- Survival. Sections 1 and 8 through 17 shall survive any termination of these Terms of Service.
7. Free Services.
Subject to the these Terms of Service, Opstarts grants to you, and you accept, the non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access and use any of the Services made available for free on its Website in accordance with the related documentation on the Website. You may terminate free Services by simply discontinuing your use of such Services and/or requesting that Opstarts terminate your account if you have created an Opstarts account. Opstarts may terminate your access to all or any part of the free Services at any time, with or without cause and with or without notice.
Unless expressly authorized in a separate written agreement between you and Opstarts, the grant to access and use any of the Services and Software herein, whether purchased for a fee or free, does not include any right to resell the Services or Software, manage the Services on behalf of third parties, make other commercial use or distribution of the Services or Software or to make any derivative use of Services or Software , integrate the Services into another service, reproduce, duplicate, copy, or otherwise exploit for any commercial purpose the Services or Software. Opstarts (or its licensors retain all right, title, and interest in the Services and Software, including any and all intellectual property rights. Opstarts (or its licensors) reserve all rights not expressly granted.
9. User Data.
10. Prohibited Use.
11. Warranty Disclaimer.
Content and other information contained within the Services and Software has been prepared by Opstarts as a convenience to its users and is not intended to constitute advice or recommendations upon which a user may rely. Opstarts has used reasonable efforts in collecting, preparing and providing quality information and material, but makes no warranty or guarantee about the accuracy, completeness, or adequacy of such content or other information contained in or linked to the Services or Software. Users relying on such content or other information from the Services and Software do so at their own risk. YOUR USE OF THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK. ALL SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, AND OPSTARTS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED , INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY. OPSTARTS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES OR SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT ANY PROBLEMS ENCOUNTERED WILL BE CORRECTED.
12. Limitation of Liability.
IN NO EVENT SHALL OPSTARTS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES OR SOFTWARE (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). IN NO EVENT SHALL OPSTARTS’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OF SERVICE, THE SERVICE AND THE SOFTWARE EXCEED THE AMOUNT PAID BY YOU TO OPSTARTS IN THE PRECEDING TWELVE (12) MONTHS. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
You agree to defend, indemnify and hold harmless Opstarts, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to (i) your unauthorized or unlawful use of the Services or Software, (ii) your breach of these Terms of Service as stated herein or (iii) the infringement by you or any third party using your account, of any intellectual property or other right of any third party. Opstarts reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will assist and cooperate with Opstarts in asserting any available defenses.
14. Force Majeure.
Opstarts shall not be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such party or its contractors, agents or suppliers, including but not limited to utility or transmission failures, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
Any notices to you from Opstarts regarding the Services or these Terms of Service will be posted on the Website or made by e-mail or regular mail. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Opstarts account, which you may not be able to opt-out from receiving them unless you terminate your account. Any notice or communication that you desire or are required to send Opstarts under these Terms of Service should be sent to Opstarts through one of the means listed in the Contacting Us section below.
16. Entire Agreement.
These Terms of Service constitute the entire agreement between Opstarts and you in connection with your use of the Services and supersedes any prior agreements between Opstarts and you regarding use of the Services and Software, including prior versions of these Terms of Service. Any different or additional terms of any related quote, purchase order, confirmation, or similar order form provided to Opstarts is hereby rejected and shall have no force or effect. If you have entered into a separate Master Services Agreement or other written agreement with Opstarts for Services, the terms in such Master Services Agreement will control your use of the Services and Software.
17. Export Controls.
You acknowledge that the Services and Software are subject to the U.S. Export Administration Regulations (the “EAR”) and the sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) and that you will comply with the EAR and OFAC sanctions. You will not export or re-export these products, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, Syria and Crimea); (2) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the US government. Further, you will not use the services from locations subject to comprehensive OFAC sanctions. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use these products.
18. Governing Law; Jurisdiction; Venue; Severability of Provisions; Disputes.
These Terms of Service are governed by the laws of the State of California, USA and the federal U.S. laws applicable therein, excluding its choice of law provisions. All parts of these Terms of Service apply to the maximum extent permitted by law. We both agree that if we cannot enforce a portion of these Terms of Service as written, then that portion will be replaced with terms that most closely match the intent of the portion that cannot be enforced to the extent permitted by law. The invalidity of part of these Terms of Service will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect. Except as otherwise prohibited by law, any claim or dispute must be brought within one (1) year from the date such cause of action arises. Any claim or dispute arising out of or relating to these Terms of Service shall be subject to the exclusive jurisdiction of state or federal courts located in San Francisco County, California, and you hereby consent and submit to the personal jurisdiction of such courts. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees. You agree that the Uniform Computer Information Technology Act (UCITA) and the United National Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service.
19. Contacting Us.
If you have any questions or concerns about these Terms of Service, please contact us at [email protected] or at the mailing address provided below. We will attempt to respond to your questions or concerns promptly after we receive them.
156 2nd Street
San Francisco, CA 94105
These Terms of Service were last updated and posted on November 11, 2015