Please Read Carefully Before Using This Website: The following terms of service (“Terms of Service“) govern your use of the OpenCounter Website (the “Site“) and the OpenCounter web-based, development platform-as-a-service accessed through the Site (“Service“), both of which are operated by OpenCounter, Inc. (“OpenCounter“).
OpenCounter expressly reserves the right to modify the Terms of Service at any time in its sole discretion, and without prior notice to you, by including such alteration and/or modification in these Terms of Service, along with a notice of the effective date of such modified Terms of Service. Any continued use by you of the Site or the Service after the posting of such modified Terms of Service shall be deemed to indicate your irrevocable agreement to such modified Terms of Service. Accordingly, if at any time you do not agree to be subject to any modified Terms of Service, you may no longer use the Site or the Service.
Use of the Site and Site Content
Eligibility. You must be at least 13 years of age or older to use the Site, provided that if you are under the age of 18, your parent or legal guardian, as applicable, must expressly consent to your use of the Site.
OpenCounter Content. Except as may be otherwise noted, the information, materials (including, without limitation, HTML, text, audio, video, white papers, press releases, data sheets, product descriptions, software and FAQs and other content) available on the Site and/or the Service (collectively, “OpenCounter Content“) are the copyrighted works of OpenCounter and its licensors, and OpenCounter and its licensors expressly retain all right title and interest in and to the OpenCounter Content, including, without limitation, all intellectual property rights therein and thereto. Except as expressly permitted herein, any use of the OpenCounter Content may violate copyright and/or other applicable laws.
Limited Site Content License. OpenCounter grants you the limited, revocable, non-transferable, non-exclusive right to use the OpenCounter Content and Third Party Content (collectively, “Site Content“) by displaying the Site Content on your computer, and downloading and printing pages from the Site containing Site Content, under the condition that (i) such activity is solely for your personal use, (ii) you do not modify or prepare derivative works from the Site Content, (iii) you do not obscure, alter or remove any notice of copyright set forth on any Site pages or Site Content, (iv) you do not otherwise reproduce, re-distribute or publicly display any of the Site Content and (v) you do not copy any Site Content to any other media or other storage format.
Software. To the extent that the Site Content is software available for download (“Software“), such Software is subject to, and your use of such Software is governed by, an applicable license agreement (“License Agreement“) accompanying, provided with, linked to or embedded in, such Software. You may not use any Software unless you first read and agree to all of the terms and conditions of the applicable License Agreement. ANY SOFTWARE AVAILABLE ON THE SITE IS WARRANTED, IF AT ALL, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE APPLICABLE LICENSE AGREEMENT. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE APPLICABLE LICENSE AGREEMENT, OR TO THE EXTENT NOT PERMITTED UNDER APPLICABLE LAW, OpenCounter EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Trademarks. All trademarks, service marks and logos included on the Site (“Marks“) are the property of OpenCounter or third parties, and you may not use such Marks without the express, prior written consent of OpenCounter or the applicable third party.
Monitoring of Site Content and use of Service. OpenCounter reserves the right, but does not undertake the obligation, to monitor use of the Site and/or the Service, and to investigate and take appropriate legal action against any party that uses the Site in violation of this Agreement or applicable law. OpenCounter reserves the right to accept, reject or modify any Site Content or Third Party Content, but assumes no liability based on its acceptance, rejection, modification or failure to modify any Site Content or Third Party Content.
Suggestions. You hereby grant to OpenCounter a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Site and/or the Service any suggestions, enhancement requests, recommendations or other feedback related to the Site or the Service provided by you to OpenCounter.
As a condition of your right to use the Site and/or the Service, you agree to respect the intellectual property rights of others. Accordingly, you agree not to upload or post to the Site or the Service any copyrighted materials, trademarks or other proprietary information belonging to any third party without the prior written consent of the applicable third party. You acknowledge that OpenCounter will terminate your access to the Site and/or the Service if you repeatedly infringe the copyright of third parties.
If you believe that your copyrighted work has been illegally uploaded or posted on the Site or the Service, you may send a written notice to OpenCounter at firstname.lastname@example.org and OpenCounter will respond pursuant to its Digital Millennium Copyright Act (“DMCA”) procedure. OpenCounter’s DMCA procedure is in accordance with that suggested by DMCA, the text of which can be found at the U.S. Copyright Office web site http://www.copyright.gov/legislation/dmca.pdf. OpenCounter reserves all rights to seek damages associated with infringement and or fraud.
Site Location. OpenCounter operates or controls the operation of this Site and the Service from offices in San Francisco, California. In addition, the Site and the Service may be mirrored, and other websites operated or controlled by OpenCounter may be located, at various locations in the United States. OpenCounter makes no representation or warranty that all of the features of the Site or Service will be available to you outside of the United States, or that they are permitted to be accessed in any particular jurisdiction outside of the United States. You acknowledge that you are solely responsible for any decision by you to use this Site and/or the Service from other locations, and that such use may be subject to, and that you are responsible for, compliance with applicable local laws.
Use of the Service
Account Registration. In order to access and use the features of the Service, you must open an account (“User Account“) by registering with OpenCounter, in which case you or the entity you represent, as applicable, will become a “User”, and you agree that the provisions of this Section 3, along with the rest of this Agreement, will apply to your use of the Service.
Definitions. The following terms have the meanings set forth in this Section; other capitalized terms used in this Agreement are defined where such terms are first underlined.
- “Government Client” means a county, municipal, state or other level of state or local government which has contracted with OpenCounter to provide a Permitting Interface.
- “Permitting Interface” means an online interface for permitting applications and related services for state and local government.
- “Protected Information” means any (i) “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, Section 6809(4), (ii) “protected health information” as that term is defined in regulations promulgated pursuant to the Health Insurance Portability and Accountability Act found at 45 CFR § 164.501, (iii) any and all information identifying specific individuals, such as name, address, phone number, date of birth, mother’s maiden name, e-mail address, social security number, and (iv) any other information that is the subject of special legal or regulatory security requirements, both in effect as of the Effective Date and as subsequently enacted.
- “Service” means the OpenCounter Permitting Interface and related features and functions as made available to Users.
- “User” means you, or the entity on behalf of which you open a User Account, as applicable.
- “User Content” means any information, data or content, including, without limitation, any and all software (whether in object or source code format), files, text, graphics, images, photos, video, audio, inventions (whether or not patentable), works of authorship, ideas and other materials provided by User to OpenCounter, or uploaded to the Service by User, in connection with User’s use of the Service.
User Account. In registering for a User Account, you agree to provide true, accurate, current and complete information (“Account Information“) when registering for the User Account, and agree to update the Account Information as required to ensure that it is current.
As an express condition of being permitted to open a User Account, you represent and warrant that you (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside, (ii) are not on a list of persons barred from receiving services under applicable laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction and (iii) are not a resident of Cuba, Iran, North Korea, Sudan or Syria.
Upon registration with the Service, OpenCounter will provide User a password for use with the User Account. User is responsible for maintaining the confidentiality of its password and for all use made of the User Account (whether or not authorized by User) and all User Content that is created, transmitted, stored, or displayed by, from, or within such account(s), and for any consequences thereof. User agrees to immediately notify OpenCounter of any unauthorized use of its password(s) or account(s), or any other breach of security related to the Services of which it becomes aware. OpenCounter shall not be liable for any loss or damage arising from User’s failure to keep its password(s) secure.
Provision of the Service; Restrictions.
In consideration of all obligations of User hereunder, OpenCounter (i) agrees to make the Service available to User in accordance with this Agreement, and (ii) hereby grants to User, a non-exclusive, non-transferable, right and license to access and use the Service solely for the purpose of providing information to applicable Government Clients. The foregoing license does not permit User to, and User hereby agrees not to, resell, relicense, resyndicate or otherwise sublicense the Service to any third-party, except as may be expressly set forth herein.
User shall not: (i) access and/or use the Service if (a) User is a direct competitor of OpenCounter, or (b) for purposes of monitoring their availability, performance or functionality, or any other benchmarking or competitive purposes, including in order to design, create or build a service or product that is competitive with the Service, or which uses ideas, features or functions that are similar to the Service; (ii) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon the Service; (iii) interfere with or disrupt the integrity or performance of the Service, (iv) attempt to gain unauthorized access to the Service or any associated systems or networks; or (v) modify or make derivative works based upon the Service or any part thereof, or directly or indirectly disassemble, decompile, or otherwise reverse engineer the Service or any portion thereof.
OpenCounter may suspend User’s access to the Service at any time in order to: (i) prevent damages to, or degradation of, OpenCounter’ network integrity; (ii) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (iii) otherwise protect OpenCounter from potential legal liability. If OpenCounter suspends User’s access to the Service, OpenCounter will promptly restore such access after the event giving rise to the suspension has been resolved to OpenCounter’s reasonable satisfaction.
The Service, including all intellectual property rights therein and thereto, and any modification thereof, are and shall remain the exclusive property of OpenCounter and its licensors. User shall not take any action that jeopardizes OpenCounter’s or its licensors’ proprietary rights or acquire any right in the Service or OpenCounter’s Confidential Information, except the limited rights expressly granted in this Agreement.
Third Party Software and Services.
In connection with User’s use of the Service, solely as a convenience for User and solely at User’s election, OpenCounter may make available to User the use of certain third party software and/or services (“Third Party Software and Services“). User agrees that OpenCounter shall have no liability or responsibility for the performance or failure to perform of any Third Party Software and Services made available to User through the Service and that the terms and conditions of User’s use of any such Third Party Software and Services are established between User and the applicable third party vendor, and User shall look solely to such third party vendor for any claim or complaint regarding Third Party Software and Services. User acknowledges that no purchase or license of any Third Party Software and Services is required to use the Service.
Other User Obligations.
User shall be responsible for obtaining any and all Internet and/or telecommunications connections used by User to access the Service. OpenCounter shall have no responsibility or liability for any interruption or delay in accessing or using the Service arising out of such Internet or telecommunications connections.
User understands and agrees that the User Content is the sole responsibility of User. OpenCounter may take such actions with respect to User Content as may be required by law.
User hereby grants to OpenCounter a limited right and license, without the right to grant or authorize sublicenses, during the Term of this Agreement to use and reproduce User Content, solely for the purpose of facilitating the performance of OpenCounter’s obligations under this Agreement.
In the event this Agreement expires or is terminated, OpenCounter will make available to User a file of the User Content within thirty (30) days of such termination or expiration if the User so requests at the time of termination or expiration. Upon termination for cause, OpenCounter shall have no obligation to maintain or to forward to User any User Content after thirty (30 days) of the effective date of such termination.
User agrees to use reasonable security precautions in connection with its use of the Service, including without limitation, encrypting any Protected Information transmitted to or from, or stored by User on, the Service.
OpenCounter specifically prohibits any use of the Service for: (i) posting any (1) information which is incomplete, false, inaccurate or not your own, (2) trade secrets or material that is copyrighted or otherwise owned by a third party unless you have written permission from the owner to post it, (3) material that infringes on any other intellectual property, privacy or publicity right of another, (4) advertisement, promotional materials or solicitation related to any product or service that is competitive with OpenCounter products or services or (5) software or programs which contain any harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses; (ii) impersonating another person; (iii) engaging in or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol; or (iv) transmitting or transferring (by any means) information or software derived from the Service to foreign countries or certain foreign nations in violation of US export control laws. In addition, Users is prohibited from violating or attempting to violate the security of the Service or OpenCounter’s system or network security, including, without limitation, the following: (a) accessing data not intended for users of the Site or the Service, or gaining unauthorized access to an account, server or any other computer system; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (c) attempting to interfere with the function of the Service, host or network, including, without limitation, via means of overloading, “flooding”, “mailbombing”, “crashing”, or sending unsolicited e-mail, including promotions and/or advertising of products or services; or (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
User represents and warrants to OpenCounter that: (i) the Account Information User has provided to OpenCounter is accurate; (ii) User will not use the Service in violation of any applicable law rule or regulation, or for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, (iii) User shall not provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States export regulations, which include, as of December 2007, Cuba, Iran, and Sudan and (iv) User is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons.
User shall defend, indemnify and hold harmless, at its cost and expense, OpenCounter against any and all losses, costs, damages, liabilities, expenses or penalties arising out of any third party claim, suit or proceeding: (i) alleging that any User Content (1) infringes or misappropriates any intellectual property right of a third party, (2) violates applicable law, (3) is obscene, defamatory, libelous, indecent or otherwise sexually explicit, disturbing, offensive, profane, vulgar, abusive, insulting, threatening or hateful, or (4) violates the privacy or publicity rights of any person; and/or (ii) arising out of a breach by User of the three previous Sections.
Term and Termination.
This Agreement will become effective on the date User opens a User Account, and will continue until terminated in accordance with the terms of this Section.
In the event that User breaches this Agreement, User’s right to access and use the Service will immediately and automatically terminate. User may terminate this Agreement at any time by deactivating the applicable User Account.
In the event of the termination of a Subscription for any reason, or expiration of a Subscription Term, User’s right to access and use the Service shall immediately terminate. All terms of this Agreement that contemplate continued performance or forbearance by either party, along with the obligation to pay any amounts, shall survive any such expiration or termination.
OPENCOUNTER PROVIDES THE SITE AND THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AS A CONVENIENCE AND AT NO CHARGE TO YOU, AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPENCOUNTER MAKES NO, AND HERERBY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTE, AS TO THE SITE, THE SERVICE OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. OPENCOUNTER DOES NOT WARRANT THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE COMPLETELY SECURE, ERROR FREE OR UNINTERRUPTED, OR THAT ALL ERRORS WILL BE CORRECTED, AND OPENCOUNTER DOES NOT WARRANT THE RESULTS OF USE OF THE SITE OR THE SERVICE, OR THAT ANY PERMIT SOUGHT FROM ANY GOVERNMENT CLIENT WILL BE GRANTED, OR THAT THE SERVICE WILL PROVIDE ANY GOVERNMENT CLIENT WITH ALL OF THE INFORMATION REQUIRED TO BE ELIGIBLE FOR THE GRANTING OF ANY APPLICABLE PERMIT. YOU ASSUME ALL RISK OF DELAYS OR INTERUPTIONS IN ACCESS TO OR USE OF THE SITE AND THE SERVICE AND OPENCOUNTER SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERUPTION, REGARDLESS OF THE CAUSE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT OpenCounter SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE, THE SITE, THE SERVICE OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OR PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL OR FOR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF OpenCounter HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE.
Assignment. Neither this Agreement nor any of your rights or obligations hereunder may be assigned by you in whole or in part without the prior written consent of OpenCounter. Any assignment in violation of this Section shall be null and void.
Governing Law; Jurisdiction and Venue. This Agreement and all matters arising under or related to its formation or performance whether sounding in contract, tort, or otherwise shall be governed in all respects by the laws of the of the State of California, without reference to conflict of laws principles and under the federal laws of the United States, as such may apply. If Federal jurisdiction exists, the parties hereby consent to exclusive venue and jurisdiction in the Federal Courts of San Francisco, California. If no Federal jurisdiction exists, the parties consent to exclusive venue and jurisdiction in the State Courts of San Francisco, California.
Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Waiver. The failure of OpenCounter to require performance by you of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by OpenCounter of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Entire Agreement. This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and supersedes, and its terms govern, all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter.