OpenBB Terminal Pro Terms and Conditions
These OpenBB Pro Terms and Conditions (the "Agreement") sets forth the terms and conditions between Customer (as defined in the paragraph below) and OpenBB, Inc., a Delaware corporation with mailing address 7726 Gunston Plz PO Box 194, Lorton VA 22199 ("OpenBB") which govern Customer's access and use of the Services. OpenBB and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." By signing an Order Form, accessing or using the Services, or clicking a box indicating your acceptance of this Agreement, you are creating a legally binding and enforceable contract where you, and if you plan to use the Services for, on behalf of, or in connection with any entity or if you indicate any entity on the applicable Order Form (the "Entity"), together with the Entity (collectively, "Customer"), agree to be bound by all the terms and conditions of this Agreement. You represent and warrant that you are lawfully able to enter into contracts on behalf of the Customer and that you have legal authority to bind the Customer. If you do not have the authority to act on behalf the Customer, or you do not, or Customer does not, agree to all the terms and conditions of this Agreement, you and the Customer are prohibited from using the Services. If these terms and conditions of this Agreement are considered an offer, acceptance is expressly limited to these terms.
1. Definitions
(a) "Authorized Users" means Customer's employees, consultants, contractors, and agents, in each case, who have been authorized by Customer to access and use the Services for or on behalf of the Customer under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder. If no Entity is indicated on the applicable Order form, Authorized User means the Customer.
(b) "Customer Input" means information, data, and other content that an Authorized User submits or inputs into the Services in order to be processed by the Services, including prompts used to instruct the Services.
(c) "Customer Output" means the output generated and returned by the Services to Authorized Users in response to the Customer Input.
(d) "Customer IP" means Customer Inputs and Customer Outputs.
(e) "Documentation" means OpenBB's user manuals and guides relating to the Services that OpenBB makes available to Customer.
(f) "OpenBB IP" means the Services, the Documentation, and any and all intellectual property related thereto, including the underlying infrastructures, systems, algorithms, source code, datasets, and any modifications, changes, or derivative works based on or related to any of the foregoing. For the avoidance of doubt, OpenBB IP does not include Customer IP.
(g) "Order Form" means any ordering document for the Services that is mutually executed by the Parties that reference to this Agreement or is signed by Customer on OpenBB website that Customer uses to purchase the Services.
(h) "Prohibited Data" means (a) protected health information or personal health data (e.g. medical records or an individual's health care claim information), (b) non-public, government-issued ID numbers (e.g. driver's license numbers, Social Security Numbers), (c) personal financial data or financial account numbers (e.g. account numbers for a personal debit card or credit card), (d) any personal information of children under 16 or the applicable age of digital consent), (e) any other data that (i) is classified as "sensitive," "special category" or a similar categorization under applicable data protection laws (e.g. the General Data Protection Regulation, the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards); (ii) constitutes criminal convictions data, or criminal offense data; or (iii) for which there is no consent from the applicable data subject for it to be submitted to OpenBB or processed through the Services.
(i) "Services" means OpenBB Terminal Pro, available at pro.openbb.co.
2. Access and Use
(a) Ordering Process. Any order submitted by Customer shall be subject to OpenBB's acceptance, in its sole discretion, in writing. Each Order Form, once mutually executed by the Parties, shall be incorporated into and subject to the terms of this Agreement. Any additional or conflicting terms or conditions in any Order Form shall be of no force or effect, unless the Order Form and the additional or conflicting terms expressly modify this Agreement by referencing the corresponding sections of this Agreement, in which event such modification shall prevail only with respect to the Order Form in which the modification is set forth. An Order Form may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(b) Provision of Access. Subject to Customer's full compliance with all terms and conditions of this Agreement, OpenBB hereby grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable license, during the period set forth in the applicable Order Form unless earlier terminated in accordance with this Agreement or such Order Form (the "Services Term"), to access and use the Services solely by Authorized Users, subject to the maximum number of users and rate limit set forth in the applicable Order Form and pursuant to the user documentation made available by OpenBB. OpenBB may in its sole discretion modify, enhance or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer hereunder.
(c) Use Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, systems, Artificial Intelligence or Machine Learning models, Documentation, Customer Outputs, or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (iv) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Software, or Customer Outputs; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software, except as expressly and specifically authorized by OpenBB under a specific Order Form on a case by case basis; (vi) use the Services or any Customer Output to develop or train a language model or any other machine learning model, or create databases, data brokerage, data selling/reselling businesses, or related products or services, whether competitive with the Services or not (all of the foregoing collectively, the "AI and Data Selling Services"); (vii) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services, or engage in model extraction or stealing attacks;; (viii) create or provide to any third party the results of any benchmark tests or other evaluation of the Services without OpenBB's prior written consent; (ix) use any method (whether through use of manual or automated means) to harvest, scrape, or extract data from the Services, other than as permitted through application programming interfaces (APIs) offered by OpenBB as part of the Services; (x) copy, cache, or store either (1) any Customer Output for the purpose of providing such Customer Output to any third party (other than to the Authorized User who submitted the corresponding prompt that instructed the Services to generate such Customer Output), or (2) any significant portion of, or create a database of, any Customer Output, other than for use with the OpenBB Services as explicitly authorized hereunder, (xi) intentionally or knowingly use or otherwise cause the Services to generate or develop infringing or illegal content; (xii) use the Services or Software 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 laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (xiii) intentionally or knowingly diverge requests of Authorized Users away from the Services (such as by making available Customer Outputs from previous prompts for future uses, or incorporating Customer Outputs into an AI and Data Selling Services; or (xiv) permit any Authorized User or third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify OpenBB of any unauthorized use that comes to Customer's attention and provide all reasonable cooperation to prevent and terminate such use.
3. Service Levels; Support
(a) Service Levels. Subject to the terms and conditions of this Agreement, OpenBB shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week.
(b) Support. Subject to the terms and conditions of this Agreement, OpenBB will provide Customer with the standard support and maintenance services that OpenBB generally provides to its customers without additional charge from Monday through Friday during OpenBB's normal business hours.
4. Intellectual Property Rights and Data
(a) OpenBB IP. As between the Parties, OpenBB retains all right, title and interest in and to the OpenBB IP, except for the limited license granted to Customer to access and use the Services in Section 2(b).
(b) Customer IP. As between the Parties, Customer retains all right, title and interest in and to the Customer IP, except for the license granted to OpenBB in this Section 4(b). Customer agrees that, each Customer Output shall be primarily for the exclusive use of the Authorized User who submitted the corresponding prompt that instructed the Services to generate such Customer Output, and shall not be copied, cached, stored, or made available to third parties in connection with any AI and Data Selling Services. Customer grants OpenBB a nonexclusive, worldwide, royalty-free, perpetual, sublicensable license to use, copy, reproduce, distribute, and make derivative works of Customer IP for the purpose of providing the Services to Customer and performing under this Agreement. OpenBB will not use Customer IP to train any machine learning models.
(c) Usage Data. OpenBB shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, metadata, technical, usage, and diagnostic related information about Customer's use of the Services, collectively, "Usage Data"), and OpenBB will be free (during and after the term hereof) to (i) use the Usage Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other OpenBB offerings, and (ii) disclose the Usage data solely in aggregated or other de-identified form in connection with its business.
(d) Data Protection. OpenBB will maintain commercially reasonable administrative, physical and technical safeguards for the Services designed to protect against accidental or unauthorized access, use, alteration or disclosure of Customer IP properly uploaded to the Services and processed or stored on a server and/or computer network owned or controlled by OpenBB for the Services. Customer shall provide legally adequate privacy notices and obtain necessary consents for the processing of Personal Data by the Services, and shall process Personal Data in accordance with all applicable laws. Customer shall not, and shall not permit any third party (including Authorized Users) to, submit to or store in Services any Prohibited Data, except for storage and processing for which Customer has obtained adequate consent from all applicable data subjects.
(e) Reservation of Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the OpenBB IP.
5. Customer Responsibilities
(a) General. Customer is solely responsible and liable for all uses of the Services and Customer Outputs, including all acts and omissions of Authorized Users. Customer shall bind all Authorized Users to this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Customer IP. Customer is solely responsible for the accuracy, completeness, quality and legality of the Customer Inputs (including complying with all applicable laws, rules or regulations and having all rights and permissions required to submit Customer Inputs to the Services). Customer acknowledges and agrees that Customer Outputs are generated through machine learning processes and are not tested, verified, endorsed or guaranteed to be accurate, complete or current by OpenBB. Customer and Authorized Users should independently review and verify all Customer Outputs as to the appropriateness for their use cases or applications. OpenBB is not responsible for verifying the accuracy or completeness of any Customer IP and is also not responsible for any inaccuracies or other errors in the Customer Outputs resulting from any errors in the Customer Inputs. Customer shall indemnify, hold harmless, and, at OpenBB's option, defend OpenBB from and against any liabilities, damages, costs (including reasonable attorneys' fees) resulting from any third-party claim, suit, action, or proceeding related to (i) Customer Input, (ii) Customer's use of the Services is not strictly in accordance with this Agreement and all related documentation, or (iii) otherwise from Customer's or any Authorized User's gross negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any such third-party claim against OpenBB unless OpenBB consents to such settlement, and further provided that OpenBB will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice at no cost to the Customer.
(c) Third Party Services. Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"). OpenBB is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. OpenBB does not make any representations or warranties with respect to Third Party Services or any third party providers. If Customer authorizes or otherwise directs OpenBB to integrate Customer's account(s) to any Third Party Services with the Services, Customer hereby represents and warrants that Customer has all the rights and authority to authorize OpenBB to do so. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.
6. Fees and Payment
(a) Fees. Customer shall pay OpenBB the fees ("Fees") as set forth in Order Form or as presented to Customer prior to Customer's confirmation of the purchase of the Services through OpenBB's online platform, without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order Form. If Customer fails to make any payment when due, without limiting OpenBB's other rights and remedies: (i) OpenBB may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse OpenBB for all costs incurred by OpenBB in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, OpenBB may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on OpenBB's income.
7. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to the public; (b) was or is known to the receiving Party at the time of disclosure; (c) was or is rightfully obtained by the receiving Party without confidentiality restrictions from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, consultants, or contractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. If Customer or any of its employees or contractors sends or transmits any communications or materials to OpenBB suggesting or recommending changes to the OpenBB IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), OpenBB is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Warranties and Disclaimers
(a) Customer. Customer represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to OpenBB herein; and (iii) the execution of this Agreement by Customer, and Customer's performance of its obligations and duties hereunder do not and will not violate any other agreement to which Customer is a party or by which Customer is otherwise bound.
(b) OpenBB. OpenBB warrants that it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.
(c) Similarity of Output. Customer acknowledges that due to the nature of the Services and artificial intelligence generally, the Customer Outputs may not be unique and other customers may receive similar data or outputs from the Services, and that nothing hereunder prevents or restricts OpenBB from (i) developing and providing its products and services to other customers without use of any Customer Input, and (ii) utilizing "skills or knowledge of a general nature" acquired during the course of providing the Services and performing hereunder. "Skills or knowledge of a general nature" shall include, without limitation, anything that might reasonably be acquired in similar work performed for another party.
(d) No Investment Advice; Not Financial Advisor. Customer acknowledges that (i) no Services should be construed as professional advice of any kind (including financial planning, business, employment, investment, accounting, tax, and/or legal advice), (ii) the Services are not intended to be a substitute for the professional advice of a financial planner, financial advisor, accountant or otherwise, and (iii) the Services are not a recommendation of an investment strategy or to buy or sell any security, digital asset (cryptocurrency, etc) in any account. Customer acknowledges that the Services are not research reports and are not intended to serve as the basis for any investment decision.
(e) Beta Services. OpenBB may offer Services that are in pre-release, beta, or trial form ("Beta Services"). Customer acknowledges and agrees that Beta Services are not suitable for production use and provided "as-is" on a temporary basis. OpenBB is not responsible for Customer's use of or reliance on Beta Services.
(f) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(b), THE OPENBB IP IS PROVIDED "AS IS" AND OPENBB HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OPENBB SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(b), OPENBB MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND (A) WITH RESPECT TO THIRD PARTY SERVICES, OR (B) THAT THE OPENBB IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Limitations of Liability
(a) Indirect Liabilities. IN NO EVENT WILL OPENBB BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER OPENBB WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) Direct Liability. IN NO EVENT WILL OPENBB'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO OPENBB UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000), WHICHEVER IS LESS.
(c) Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 9 SHALL NOT APPLY TO DAMAGES ARISING OUT OF ANY BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7.
10. Term and Termination
(a) Term. The term of this Agreement will commence upon the earlier of the effective date set forth on the Customer's first Order Form, or the date Customer first uses the Services, or Customer's online acceptance of this Agreement, subject to early termination as provided herein (the "Term"). This Agreement will continue to govern any Order Form for the duration of the applicable Services Term. If there is no outstanding Order Form, this Agreement will expire twenty-four months after the ending date of the last Order Form.
(b) Termination. In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement or the applicable Order Form, effective on written notice to the other Party, if the other Party materially breaches this Agreement or the applicable Order Form, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days (or 10 days for Customer's failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Termination of this Agreement will terminate all Order Forms. Termination of a specific Order Form will not impact the other Order Forms. (c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement or an applicable Order Form, Customer shall immediately discontinue use of the OpenBB IP subject to such termination and, without limiting Customer's obligations under Section 7, Customer shall delete, destroy, or return all copies of such OpenBB IP and certify in writing to OpenBB that such OpenBB IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. (d) Survival. This Section 10(d) and Sections 1, 2(c), 4(other than (d)), 5, 6, 7, 8(c)-(f), 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with all Order Forms and other documents (if any) incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Forms, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the terms and conditions of this Agreement; (ii) second, the Order Forms; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law, or any action taken by a governmental or public authority including imposing an embargo.
(d) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. (e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Publicity. OpenBB is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion. Customer agrees that OpenBB may use Customer’s name, logo, and other identifying information in press releases, case studies, testimonials, trade shows, or other marketing materials (the “Publicity Activities”). Customer acknowledges that participation in the Publicity Activities is voluntary and subject to its own discretion, however Customer agrees to reasonably cooperate with OpenBB in participating in the Publicity Activities.
(l) Amendments. OpenBB may amend the terms and conditions of Agreement from time to time, in which case the new Agreement will supersede prior versions. OpenBB will use commercially reasonable efforts to provide advance notice to Customer of any material amendment. If Customer does not agree to any amendment, Customer may opt out of the automatic renewal prior to the expiration of the then-current subscription term under Orders Forms entered into prior to such amendment, which will continue to be subject to the prior version of this Agreement (without such amendment). Customer’s continued use of the Services following the effective date of any such amendment constitute Customer’s agreement to any such amendment. Any Order Forms executed after the effective date of an amendment shall constitute Customer’s agreement to any such amendment. OpenBB’s acceptance of any document submitted by Customer to OpenBB shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of OpenBB.