Openlayer Inc.

TERMS AND CONDITIONS

Last Updated: August 24, 2022

These Terms and Conditions (these “Terms”) contain the general terms and conditions that apply to customers and users (collectively, “users,” or “you”) of the community edition, pilot services, or other unpaid or trial versions of the modeling platform and related content (the “Services”) developed by Openlayer Inc. (“Openlayer,” or “us,” “we,” or “our”). 

These Terms are an agreement between you and Openlayer. Please read these Terms carefully as they govern your conduct when using the services. These Terms are incorporated into and are supplemental to our Privacy Policy, as well as any other specific, written agreements you may have with us with respect to a particular service. But unless you have a specific, written agreement with us providing otherwise, these Terms apply to you.

By using the Services, you accept and agree to be bound by and abide by these Terms and Our Privacy Policy (both of which may be updated from time to time). Further, you represent and warrant (a) you are eighteen (18) years of age or older; (b) you have good right, title, and authority to enter into these terms on your own behalf and on behalf of any entity or person whom you purport to represent (which entity shall be considered part of you for purposes of these terms); (c) the use of these Services and the entering into of these terms has  been duly authorized and approved by any entity or person whom you represent; and (d) effective as of the date you first use the Services, these terms constitute valid and binding obligations enforceable against you as described herein. If you do not agree to these terms or if you are unable to make the foregoing representations and warranties, you must not use the Services.

1.      GRANT OF LICENSE

Subject to your strict compliance with these Terms, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, limited license to use the Services. We expressly reserve any rights not expressly granted herein. You are solely responsible for any hardware, software, and telecommunications services necessary to access and use the Services. We make no warranty or guaranty that the Services will always be available or will not change.

This limited license is granted solely to you for your use, or, in the case of a legal entity, for the use by your employees, of the Services. You may use the Services only for your internal personal or business purposes. You may download and install only one copy of the Services, though we permit you to make an additional copy for backup purposes. Any copies you make are subject to these Terms.

You are responsible and liable for all uses of the Services through the access you permit, whether directly or indirectly, intentionally or unintentionally.

2.       USE RESTRICTIONS

Unless you have a separate, written agreement with us providing otherwise, you may not:

·         copy, modify, or create derivative works of the Services, in whole or in part;

·         rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services;

·         reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;

·         remove any copyright, trademark, confidentiality, or other proprietary notices from the Services;

·         use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;

·         combine or integrate the Services with any software, technology, services, or materials;

·         design or permit any applications to disable, override, or otherwise interfere with any Openlayer’s communications to end users, consent screens, user settings, alerts, warning, or the like;

·         use the Services to replicate or attempt to replace the user experience of the Services in another application or service;

·         attempt to cloak or conceal your identity when requesting authorization to use the Services;

·         use the Services in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities;

·         bully, intimidate, or harass other users, or use the Services in any manner that is threatening, abusive, violent, harmful, or invasive of another’s privacy;

·         upload or submit any content to the Services that is not wholly owned or created by you;

·         use the Services to collect, disclose, or otherwise process another’s personal information without their consent to do so or in any other way in violation of applicable law;

·         impersonate another user or any other person or entity, or otherwise falsely state or misrepresent your affiliation with a person or entity;

·         use the Services in any manner that is harmful to minors, including, without limitation, by transmitting or posting any content on the Services that violates child pornography or sexual exploitation laws; or

·         use the Services in any manner that we determine in our sole discretion is abusive or harmful.

You also agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, and that you shall not violate or infringe the rights of any third party.

Any such use of the Services that, in our sole discretion, violates these restrictions shall immediately and automatically terminate your license to use the Services without notice.

3.      TERM AND TERMINATION

These Terms apply so long as you are using the Services or have a copy of the Services in your possession. We may terminate your access to the Services at any time for any or no reason, unless you have a specific, written agreement with us giving you access for a specific term. Upon termination of your access to the Services, you shall immediately discontinue use of the Services. These Terms survive termination to the extent applicable.

4.      USERNAME AND PASSWORD

You will be required to provide certain registration details or other information and become a “Registered User” of Openlayer before accessing certain features of the Services.  It is a condition of your use of these Services as a Registered User to ensure all the information you provide is correct, current, and complete.  The information you provide will be treated and used in accordance with our Privacy Policy.  If you choose or are provided with a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential and you must not disclose it to any other person or entity.  You acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your username, password, or other security information.  You must notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.  You must exit from your account at the end of each session and use caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. 

We have the right to disable any username, password, or other identifier, whether chosen or provided, at any time in our sole discretion for any or no reason, including, without limitation, if, in our opinion, you have violated any provision of these terms.

5.      MODIFICATION OR DISCONTINUATION OF SERVICES

We may, in our sole discretion and at any time, modify or discontinue the Services in whole or in part. For modified Services, you may be requested accept a modification or new terms when you log in to your account. If you do not accept the amended terms, you will not have access to the Services. We may discontinue our Services at any time without notice. Any dated information is published as of its date only and we do not undertake any obligation or responsibility to update or amend any such information.

Furthermore, while access to and use of the Services is currently offered for free, we may remove free access to the Services or add certain additional paid features or subscription offerings in the future. In addition, your standard data and messaging rates apply to the devices you use to access the Services.

6.      MAINTENANCE AND SUPPORT

Maintenance and support may include our provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as we make generally available free of charge to all current licensees of the Services, or to some current licensees. Use of the Services does not entitle you to receive maintenance or support from Openlayer. We may develop and provide Updates in our sole discretion, and we have no obligation to develop any Updates at all or for particular issues you may bring to our attention. All Updates are deemed a part of the Services and are subject to these Terms. Updates do not include any new versions or new releases of the Services that we may issue, in our sole discretion, as a separate or new product.

7.      PROPRIETARY RIGHTS

The Services, including, without limitation, any of our internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, including, without limitation, templates and designs of goods offered or sold, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof shall remain the sole and exclusive property of Openlayer, and you shall have no interest in them whatsoever.

All right, title, and interest in and to the Services, except for information and content generated by you and third parties, are and will remain our exclusive property. Our intellectual property rights in the Services are protected by copyright and trademark laws of the United States and international treaties, as well as other domestic and international laws. Nothing in these terms gives you a right to use our trademarks, logos, domain names, and other distinctive brands. There is also nothing in these terms that gives you the right to copy the Services, to copy any feature or portion of the Services, or create a derivative of the Services, all of which is expressly prohibited. Unless prohibited by law, any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary, you agree to and hereby do assign any and all intellectual property rights in your feedback, comments, or suggestions to Openlayer Inc., and we will be free to use your feedback, comments, or suggestions as we see fit and without any obligation or approval to you whatsoever.

8.      SUBMISSIONS; USE BY OTHERS; DATA PRIVACY RIGHTS

You are solely responsible for your use of the Services and the contents of your transmissions through the Services. Your use of the Services is subject to all applicable local, state, national and international laws and regulations and the license and use restrictions set forth above.

You agree to monitor the use of the Services by any other person, whether an employee, agent, or otherwise, who is acting on your behalf, at your direction, or using your account, for any activity that violates applicable laws, rules, and regulations or any of these terms, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services. You agree to provide a resource for users of the Services to report abuse of the Services at your operations. As between you and us, you are responsible for all acts and omissions of your end users in connection with yours and their use of the Services. 

In the event you are using the Services to process personal information, you agree that you are solely responsible for posting any privacy notices and obtaining any consents from your data subjects required under applicable laws, rules, and regulations for your use of the Services. You hereby represent and warrant to us that you have provided such notices and obtained such consents before submitting any personal information to us or using the Services to process any personal information. You must not use the Services to process personal information without a data subject’s knowledge or consent, or in any way that violates applicable law.

9.      COLLECTION AND USE OF INFORMATION

You acknowledge that Openlayer may, directly or indirectly, collect, use, maintain, disclose, or otherwise process information regarding your use of the Services for our legitimate business purposes, including improving, enhancing, or continuing development of the Services or our other goods and services, as well as verifying your compliance with these Terms.

10.  INDEMNIFICATION

You agree to immediately notify us of and indemnify and hold Openlayer, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Services, (including, without limitation, the unauthorized use of your account or any other breach of security attributable to your use of the Services, and including, again, without limitation, any violation of any data subject’s personal information privacy rights), the violation of these terms by you, or the infringement by you, or another user using your account, on any intellectual property or other right of any person or entity.

11.  DISCLAIMER

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.  THE SERVICES ARE PROVIDED “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. UNLESS OTHERWISE REQUIRED BY LAW OR PROVIDED IN AN EXPRESS, WRITTEN AGREEMENT BETWEEN YOU AND OPENLAYER, NEITHER OPENLAYER NOR ANY PERSON ASSOCIATED WITH OPENLAYER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACCURACY OF MACHINE LEARNING MODELS MODIFIED BY USING OPENLAYER’S SERVICES. WITHOUT LIMITING THE FOREGOING, AND AGAIN UNLESS REQUIRED BY LAW OR PROVIDED IN AN EXPRESS, WRITTEN AGREEMENT BETWEEN YOU AND OPENLAYER, NEITHER OPENLAYER NOR ANYONE ASSOCIATED WITH OPENLAYER REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

WE MAY MODIFY, SUSPEND, OR DISCONTINUE OFFERING THE SERVICES AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE OR COMPENSATION TO YOU. THE SERVICES MAY BECOME UNAVAILABLE DUE TO MAINTENANCE, OUTAGE, OR ANY OTHER REASON WHATSOEVER. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER RELATING TO OR RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, DELETION OF FILES, LOSS OR MODIFICATION OF CONTENT OR DATA, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO ANY SERVER, RECORDS, PROGRAMS, OR SERVICES, WHETHER OR NOT LIMITED TO CIRCUMSTANCES BEYOND OUR CONTROL. 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

12.  LIMITATION OF LIABILITY

IN NO EVENT WILL OPENLAYER, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS AND EMPLOYEES, OR ANY OTHER PERSON ASSOCIATED WITH OPENLAYER (COLLECTIVELY, “OPENLAYER THIRD PARTIES”) BE LIABLE TO YOU  FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE FOR LOSS OF PROFITS, REVENUE, OR GOODWILL, USE, DATA OR OTHER INTANGIBLES, WHETHER THE CLAIM IS BASED UPON CONTRACT, BREACH OF WARRANTY, TORT, OR OTHER THEORY, RESULTING FROM OR CONCERNING THE USE OR THE INABILITY TO USE THE SERVICES OR YOUR FAILURE TO COMPLY WITH THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF OPENLAYER OR ANY OPENLAYER THIRD PARTIES FOR ANY CAUSE OF ACTION OR REASON WHATSOEVER EXCEED YOUR FEES PAID TO US, OR, IN THE EVENT YOU HAVE PAID NO FEES, ONE-HUNDRED DOLLARS ($100.00 USD). YOUR SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS IS TO DISCONTINUE THE USE OF THE SERVICES. THE LIABILITY OF ANY PARTY UNDER THESE TERMS SHALL BE CUMULATIVE AND NOT PER INCIDENT. OPENLAYER DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO:

  1. ANY ERRORS IN OR OMISSIONS IN THE SERVICES AND THEIR CONTENT, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS;
  2. ANY ERRORS OR OMISSIONS FROM RESULTING FROM YOUR USE OF THE SERVICES;
  3. THE UNAVAILABILITY OF THE SERVICES, OR ANY PORTION THEREOF;
  4. YOUR USE OF THE SERVICES AND/OR ANY ERRORS OR OMISSIONS IN DATA ENTRY BY YOU; OR
  5. YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES. 

YOU MUST COMMENCE ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13.  NOTICES

Unless otherwise provided herein or in another express, written agreement between you and Openlayer, notices given by us to you will be given by email. Notices will be sent to the email address you provide to us as part of the registration process, or to updated addresses which you provide to us via notice consistent with this paragraph. Notices given by you to Openlayer must be given by email to support@openlayer.com or such updated address and number as Openlayer may provide you consistently with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notice sent to the email address last provided by you to Openlayer shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

14.  GOVERNING LAW; JURISDICTION AND VENUE

These terms shall be governed by and construed in accordance with the laws of the State of California notwithstanding any conflict of law’s provisions. You irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the state and federal courts of California (the “California Courts”) for any litigation or controversy arising out of or relating to these terms, (ii) agree not to commence any litigation arising out of or relating to these terms except in the California Courts and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum.

15.  MISCELLANEOUS

If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of these terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. The section titles in these terms are solely used for the convenience of the parties and have no legal or contractual significance. These terms may be assigned in whole or in part by Openlayer. These terms may not be assigned in any manner by you without the express, prior written permission of Openlayer.

Our failure to enforce any right or provision of these terms will not be deemed a waiver of such right or provision. Any waiver will be in writing and signed by the waiving party.

We may revise these terms at any time in our sole discretion by providing you with email notification of the same. Continued use of our Services following any change constitutes your acceptance of the change.

If you have questions regarding these terms, please contact us at support@openlayer.com.