Terms of Service
Last Update: January 02, 2020.
We will try to make this as light and straightforward as possible, but the reality is that all Terms of Service contain legalese. We ask you to read these Terms carefully before using Deyel for this is a contract between you and Optaris Inc. (“Optaris”) If you have questions about these terms of service, please email us at hola@deyel.com
THESE TERMS OF SERVICE ("TERMS") CONSTITUTE AN AGREEMENT BETWEEN YOU AND OPTARIS INC. AND THEY GOVERN THE USE OF AND ACCESS TO THE SERVICE AND THE WEBSITE BY YOU, THE SUBSCRIBERS AND END USERS WHETHER IN CONNECTION WITH HAVING PAID FOR A SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE (TRIAL or TEST DRIVE).
By accepting these Terms, or by accessing or using the Service or the Website, or by authorizing or allowing a Subscriber or End User to access or use the Service, You agree to be bound by these Terms. If you are signing these Terms on behalf of a company, organization or any other legal entity (an "Entity"), You agree to these Terms for that Entity and before Optaris, You represent having the authority to bind such Entity and its affiliates to these Terms , in which case the terms "Subscriber", "You", "Your" or the capitalized terms listed herein will refer to such Entity and its affiliates. If you do not have such authority, or if you do not agree to these Terms, you must not accept these Terms and consequently you will not be able to use the Service.
Account: means all Deyel accounts or instances created by or on behalf of the Subscriber within the Service.
Confidential Information: means all the information disclosed by You to Optaris or by Optaris to You, which may or may not be labeled as "confidential" (or with a similar legend) or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. For the purposes of these Terms, your Data (including - by way of example and without limitation - information of a legal, labor, commercial, technical, statistical, industrial, scientific or financial nature and/or information about operations, relations and/or business methods and operational capacity) will be considered Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party from a third party and that the receiving party is unaware that such information is under an obligation of confidentiality; c) is or becomes generally available to the public by means other than in violation of these Terms; or (d) was or has been developed independently by the receiving party without the use of the disclosing party's Confidential Information.
API: means the application programming interfaces developed and enabled by Deyel that allows the Subscriber to access certain functions provided by the Service, including but not limited to the Deyel REST API that allows automatic interaction with a Deyel instance through HTTPS requests and the application development Deyel API that enables integration of a Deyel instance with other web applications.
Documentation: means any written or electronic documentation, images, videos, texts or sounds that specify the functionalities of the Service provided or made available by Optaris for You, for Subscribers or End Users through the Site or otherwise.
End User: means any person or entity other than the Subscriber or with whom the Subscriber interacts using the Service.
Form: means any Service order form generated, executed or approved by You with respect to Your subscription to the Service, which may detail, among other things, the number of Subscribers and / or End Users authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
Other Services: means applications, services, software, products, networks, systems, directories, websites, databases, information and third-party products to which the Service is linked, or with which You can connect or enable together with the Service, including, without limitation, certain Other Services that may be directly integrated into your Deyel Service.
Service: means the low-code/no-code platform to generate applications and automation with Process Orientation, that is, Deyel and the tools provided by Optaris, which include, individually and collectively, Software, API and any other Documentation. Any new or modified feature added to or augmented by the Service or updates or improvements to the Service ("Updates") are also subject to these Terms and we reserve the right to implement Updates at any time.
Service Plan: means the service plan and the functionality and services associated with it (as detailed on the Website) for which You subscribe with respect to each Subscriber.
Site (or Website): means http://deyel.com and all other websites owned or operated by Optaris or its subsidiaries, as well as any subdomains.
Software: means software provided by Optaris (either by download or access through the Internet) that allows a Subscriber or End User to use any functionality related to the Service.
Subscriber: means a person authorized to use the Service through Their Account as product owner, contributor, reviewer, viewer and/or administrator of the product identified through an individual email address.
User Types are the different types of users that can be defined in Deyel, including:
Your Data: means all electronic data, texts, messages or other materials sent by You, Subscribers and End Users to the Service in connection with Their use of the Service.
Optaris: means Optaris Inc., a Delaware corporation, or any of its affiliates, successors, or assignees. In these terms, Optaris may also be referred to by the use of "We", "Us" or "Our".
2.2 A high-speed Internet connection is required for the correct transmission of the Service. You are responsible for obtaining and maintaining the network connections that connect Your network to the Service, including but not limited to "browser" software that supports the protocols used by Deyel, including the Secure Socket Layer (SSL) protocol or other protocols accepted by Deyel, and follow the procedures to access the services that support such protocols. We are not responsible for notifying You, Subscribers or End Users of any update, correction or improvement to such software or for any compromise of data, including Your Data, transmitted over computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned, operated or controlled by Optaris. We do not assume any responsibility for the reliability or performance of any connection as described in this section.
2.3 You agree not to (a) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Service available to third parties, other than authorized Subscribers and End Users in furthering their internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of third parties other than Subscribers or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely involve any sponsorship or association with Optaris, (e) use the Service in an illegal manner, including, but not limited to, the violation of the privacy rights of any person; (f) use the Service to send unsolicited or unauthorized spam, spam, pyramid schemes, or other forms of duplicate or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes the intellectual property rights of any person; (h) use the Service in any way that interferes or disrupts the integrity or performance of the Service and its components; (i) attempt to decrypt, decompile, reverse engineer or discover the source code of any software that makes up the Service; (j) use the Service to knowingly publish, transmit, upload, link, send or store any content that is illegal, racist, hateful, abusive, defamatory, obscene or discriminatory; (k) use the service to knowingly transmit, upload, link, send or store any viruses, malware, Trojans, time bombs or any other similar malicious software ("Malicious Software"); or (l) attempt to use or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Subscribers and End Users and each and every one of the activities that occur under Your Account, as well as all Your Data. Notwithstanding the foregoing, You are solely responsible for ensuring that the use of the Service that stores and transmits Your Data complies with all applicable laws and regulations. You are also responsible for determining whether the Service or the information generated by it is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Subscribers available under the Service Plan for which You have subscribed, access to and use of the Service is restricted to the specified number of individual Subscribers allowed under Your subscription to the Service. You agree and acknowledge that each Subscriber will be identified with a unique email address and password, and that a Subscriber Login may only be used by one (1) individual. You will not share a Subscriber login among several people. You and Your Subscribers are responsible for maintaining the confidentiality of all login information for your account.
2.5 In addition to Our rights as set out in Section 7.4, Optaris reserves the right, at the reasonable discretion of Optaris, to temporarily suspend your access to and use of the Service: (a) during planned downtime for updates and maintenance of the Service ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of force majeure, acts of government, acts of terror, or civil disturbances, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts performed by third parties, including, but not limited to, distributed denial of service attacks; or (c) if we suspect or detect any malicious software connected to your account or use of the service by You, Subscribers or End Users.
3.2 Optaris will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies).
3.3 You agree that Optaris to help provide the Service will have the right to access Your Account and Your Data only to the extent necessary to provide the Service, including but not limited to responding to Your requests for support. This access must be done with your prior authorization in each case that is necessary.
3.4 We collect certain information about You, Subscribers and End Users, as well as Your and their respective devices, computers and use of the service. We use, disclose and protect this information as described in Our Privacy Policy, the current version of which is available at www.deyel.com/en/privacy-policy/ and which is incorporated into the Terms.
3.5 Optaris does not own any customer data. The Client will have sole responsibility for the accuracy, quality, integrity, legality, reliability, adequacy and intellectual property or right to use any and all of their data.
3.6 Insofar as Optaris processes Personal Data as part of Customer Data that is subject to the General Data Protection Regulation ("GDPR"), on behalf of the Customer, for the provision of services Described herein, the terms of the Optaris Data Processing Agreement https://www.deyel.com/en/data-processing-agreement/ which are incorporated herein by reference, will apply. For customers located in the European Union or the European Economic Area, the standard contractual clauses adopted by the European Commission, attached to the Data Processing Agreement with Optaris Inc. will apply. They provide adequate guarantees with respect to the personal data processed by us in accordance with these Terms, and in accordance with the provisions of our Data Processing Agreement. You acknowledge in all cases that Optaris acts as the data processor of Customer Data and You are the data controller of Customer Data under applicable data protection regulations in the European Union and the European Economic Area. The Client will obtain and maintain the consents necessary to allow the processing of Client Data under these Terms. If you are subject to the GDPR, you understand that if you give an integration provider access to your Deyel account, you serve as the data controller of such information and the integration provider serves as a data processor for the purposes of law and data regulations that apply to You. In no event will such integration providers be considered our sub-processors.
6.2 If You choose to upgrade Your Service Plan or increase the number of Subscribers or authorized End Users during Your Subscription Term (a "Subscription Upgrade"), the increases in Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your current Subscription Term, charged to Your Account and owed and payable upon the implementation of such Subscription Update. In any future Subscription Term, Your Subscription Charges will reflect such Subscription Improvements.
6.3 No refunds or credits will be provided for Subscription Charges or other fees or payments if You choose to reduce Your Service Plan. The reduction of Your Service Plan may result in the loss of content, functions or the capacity of the service, which is available to You in Your Account, and Optaris does not accept any responsibility for such loss. Optaris reserves the right to contact You about special pricing if You maintain an exceptionally high number of End Users, or an unusually high monthly connection rate for a product, version or feature per Subscriber or other excessive load on the service.
6.4 Unless otherwise indicated, our charges do not include taxes, levies, duties or similar government fees, this includes value added taxes, sales tax, use tax and tax withholdings that may be levied by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes, except those that may be levied on Optaris based on its income. We will bill You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Tax if You are billed.
6.5 If you pay by credit card, the Service provides an interface for the account owner to change the credit card information (for example, when renewing the card). The Account owner will receive a receipt for each payment received by Optaris, or they can obtain a receipt from the Service to track the status of the subscription. Optaris uses an external intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information, except to process Your credit card information for Optaris.
7.2 No refunds or credits will be provided to You for Subscription Charges or other fees or payments if You decide to terminate Your subscription to the Service or cancel Your Account before the end of Your then-current Subscription Term. Upon termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of business. Your Data cannot be recovered once Your Account is canceled.
7.3 If You terminate Your subscription to the Service or cancel Your Account before the end of Your effective Subscription Term or We effect such termination or cancellation in accordance with Section 2.5 (c) or 7.4, in addition to other amounts You may owe Optaris, You must immediately pay the unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable in the event that You terminate your subscription to the Service or terminate your account as a result of a substantial breach of these Terms by Optaris, provided that You notify Optaris in advance of such breach and provide Optaris with no less than thirty (30) days to reasonably remedy such breach.
7.4 Optaris reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your rights and/or Subscribers or End Users rights to access and use the Service, and delete, disable and discard any of Your Data if We believe that You, Subscribers or End Users have violated these Terms. Unless it is legally prohibited to do so, Optaris will use all commercially reasonable efforts to contact You directly via email to notify You when it takes any of the above actions. Optaris will not be liable to You, Subscribers, End Users or any other third party for any modification, suspension or interruption of your rights to access and use the Service. Any suspicion of fraudulent, abusive or illegal activity by You, Subscribers or End Users may be referred to law enforcement authorities at our sole discretion.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, THE AGGREGATE LIABILITY OF OPTARIS TOWARDS YOU OR ANY THIRD PARTY ARISING FROM THESE TERMS OR OTHERWISE RELATED TO ANY SUBSCRIPTION, USE OR USE OF THE SERVICE, SHALL IN NO EVENT EXEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR EVENT THAT GIVES REASON TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE RISKS UNDER THESE TERMS BETWEEN PARTIES AND TO LIMIT THE POTENTIAL LIABILITY GRANTED BY THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER HAD OPTARIS ASSUMED ANY ADDITIONAL LIABILITIES OTHER THAN THOSE SET FORTH HEREIN. OPTARIS HAS RELIED ON THESE LIMITATIONS TO DETERMINE WHETHER IT GIVES YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED IN THESE TERMS.
9.3 The limitations in Section 9.1 and Section 9.2 shall not apply to any willful breach of confidentiality under Section 3, nor to Our indemnification obligations under Section 10.
9.4 Some jurisdictions do not allow the exclusion of implied warranties or the limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OPTARIS' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
10.2 You will indemnify and hold Optaris out of any lawsuit brought by a third party against Optaris arising out of or related to the use of the Service by You, Subscribers or End Users that violate these Terms or matters that You may have expressly accepted as responsible in accordance with these Terms; provided Optaris promptly advises you of the threat or notice of such claim.
11.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Optaris with respect to its content. We may modify these Terms from time to time, in which case the new Terms will supersede previous versions. We will announce any material changes to these Terms by email or in-app messages at least seven (7) days before they take effect. Optaris' failure to enforce any provision of these Terms at any time does not constitute a waiver of that provision or any other provision of the Terms.
THESE TERMS OF SERVICE ("TERMS") CONSTITUTE AN AGREEMENT BETWEEN YOU AND OPTARIS INC. AND THEY GOVERN THE USE OF AND ACCESS TO THE SERVICE AND THE WEBSITE BY YOU, THE SUBSCRIBERS AND END USERS WHETHER IN CONNECTION WITH HAVING PAID FOR A SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE (TRIAL or TEST DRIVE).
By accepting these Terms, or by accessing or using the Service or the Website, or by authorizing or allowing a Subscriber or End User to access or use the Service, You agree to be bound by these Terms. If you are signing these Terms on behalf of a company, organization or any other legal entity (an "Entity"), You agree to these Terms for that Entity and before Optaris, You represent having the authority to bind such Entity and its affiliates to these Terms , in which case the terms "Subscriber", "You", "Your" or the capitalized terms listed herein will refer to such Entity and its affiliates. If you do not have such authority, or if you do not agree to these Terms, you must not accept these Terms and consequently you will not be able to use the Service.
DEFINITIONS
The following terms have the following meanings:Account: means all Deyel accounts or instances created by or on behalf of the Subscriber within the Service.
Confidential Information: means all the information disclosed by You to Optaris or by Optaris to You, which may or may not be labeled as "confidential" (or with a similar legend) or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. For the purposes of these Terms, your Data (including - by way of example and without limitation - information of a legal, labor, commercial, technical, statistical, industrial, scientific or financial nature and/or information about operations, relations and/or business methods and operational capacity) will be considered Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party from a third party and that the receiving party is unaware that such information is under an obligation of confidentiality; c) is or becomes generally available to the public by means other than in violation of these Terms; or (d) was or has been developed independently by the receiving party without the use of the disclosing party's Confidential Information.
API: means the application programming interfaces developed and enabled by Deyel that allows the Subscriber to access certain functions provided by the Service, including but not limited to the Deyel REST API that allows automatic interaction with a Deyel instance through HTTPS requests and the application development Deyel API that enables integration of a Deyel instance with other web applications.
Documentation: means any written or electronic documentation, images, videos, texts or sounds that specify the functionalities of the Service provided or made available by Optaris for You, for Subscribers or End Users through the Site or otherwise.
End User: means any person or entity other than the Subscriber or with whom the Subscriber interacts using the Service.
Form: means any Service order form generated, executed or approved by You with respect to Your subscription to the Service, which may detail, among other things, the number of Subscribers and / or End Users authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
Other Services: means applications, services, software, products, networks, systems, directories, websites, databases, information and third-party products to which the Service is linked, or with which You can connect or enable together with the Service, including, without limitation, certain Other Services that may be directly integrated into your Deyel Service.
Service: means the low-code/no-code platform to generate applications and automation with Process Orientation, that is, Deyel and the tools provided by Optaris, which include, individually and collectively, Software, API and any other Documentation. Any new or modified feature added to or augmented by the Service or updates or improvements to the Service ("Updates") are also subject to these Terms and we reserve the right to implement Updates at any time.
Service Plan: means the service plan and the functionality and services associated with it (as detailed on the Website) for which You subscribe with respect to each Subscriber.
Site (or Website): means http://deyel.com and all other websites owned or operated by Optaris or its subsidiaries, as well as any subdomains.
Software: means software provided by Optaris (either by download or access through the Internet) that allows a Subscriber or End User to use any functionality related to the Service.
Subscriber: means a person authorized to use the Service through Their Account as product owner, contributor, reviewer, viewer and/or administrator of the product identified through an individual email address.
User Types are the different types of users that can be defined in Deyel, including:
- Deyel Modeler User: user that can define and model Business processes, being able to incorporate low coding; generally intended for IT professionals using the tool.
- Agile Modeler User: user that can define and model forms and Business processes without incorporating code, being able to get help from an assistant; generally oriented to the non-technical user that wants to model their own applications. Participating User: user that uses the forms, processes and applications created on the platform.
- Eventual User: user, not belonging to the Entity that hires the Service (contractors, suppliers, clients, etc.), that uses the forms, processes and applications created on the platform on a non-regular basis.
Your Data: means all electronic data, texts, messages or other materials sent by You, Subscribers and End Users to the Service in connection with Their use of the Service.
Optaris: means Optaris Inc., a Delaware corporation, or any of its affiliates, successors, or assignees. In these terms, Optaris may also be referred to by the use of "We", "Us" or "Our".
GENERAL CONDITIONS; ACCESS AND USE OF THE SERVICE
2.1 During the Subscription Term and subject to Your compliance, Subscribers and End Users of these Terms, have the limited right to access and use the Service in accordance with the Service Plan to which You subscribe for Your internal business purposes. . Without limiting the foregoing, Your right to access and use the API is also subject to restrictions and policies implemented by Optaris from time to time with respect to the API as set out in the Documentation or as communicated to You in writing.2.2 A high-speed Internet connection is required for the correct transmission of the Service. You are responsible for obtaining and maintaining the network connections that connect Your network to the Service, including but not limited to "browser" software that supports the protocols used by Deyel, including the Secure Socket Layer (SSL) protocol or other protocols accepted by Deyel, and follow the procedures to access the services that support such protocols. We are not responsible for notifying You, Subscribers or End Users of any update, correction or improvement to such software or for any compromise of data, including Your Data, transmitted over computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned, operated or controlled by Optaris. We do not assume any responsibility for the reliability or performance of any connection as described in this section.
2.3 You agree not to (a) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Service available to third parties, other than authorized Subscribers and End Users in furthering their internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of third parties other than Subscribers or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely involve any sponsorship or association with Optaris, (e) use the Service in an illegal manner, including, but not limited to, the violation of the privacy rights of any person; (f) use the Service to send unsolicited or unauthorized spam, spam, pyramid schemes, or other forms of duplicate or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes the intellectual property rights of any person; (h) use the Service in any way that interferes or disrupts the integrity or performance of the Service and its components; (i) attempt to decrypt, decompile, reverse engineer or discover the source code of any software that makes up the Service; (j) use the Service to knowingly publish, transmit, upload, link, send or store any content that is illegal, racist, hateful, abusive, defamatory, obscene or discriminatory; (k) use the service to knowingly transmit, upload, link, send or store any viruses, malware, Trojans, time bombs or any other similar malicious software ("Malicious Software"); or (l) attempt to use or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Subscribers and End Users and each and every one of the activities that occur under Your Account, as well as all Your Data. Notwithstanding the foregoing, You are solely responsible for ensuring that the use of the Service that stores and transmits Your Data complies with all applicable laws and regulations. You are also responsible for determining whether the Service or the information generated by it is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Subscribers available under the Service Plan for which You have subscribed, access to and use of the Service is restricted to the specified number of individual Subscribers allowed under Your subscription to the Service. You agree and acknowledge that each Subscriber will be identified with a unique email address and password, and that a Subscriber Login may only be used by one (1) individual. You will not share a Subscriber login among several people. You and Your Subscribers are responsible for maintaining the confidentiality of all login information for your account.
2.5 In addition to Our rights as set out in Section 7.4, Optaris reserves the right, at the reasonable discretion of Optaris, to temporarily suspend your access to and use of the Service: (a) during planned downtime for updates and maintenance of the Service ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of force majeure, acts of government, acts of terror, or civil disturbances, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts performed by third parties, including, but not limited to, distributed denial of service attacks; or (c) if we suspect or detect any malicious software connected to your account or use of the service by You, Subscribers or End Users.
DATA PRIVACY AND SECURITY; CONFIDENTIALITY
3.1 Subject to the express permissions of these Terms, You and Optaris will reciprocally protect Confidential Information from unauthorized use, access or disclosure, in the same way that each one protects their own Confidential Information, but with no less than reasonable care. . Unless expressly authorized otherwise in accordance with these Terms, each of us may use the Confidential Information of others to exercise those respective rights and fulfill our obligations under these Terms and will disclose such Confidential Information only to our respective employees, representatives and Subscribers who have a need to know that Confidential Information for such purposes and who are obliged to maintain the confidentiality of such Confidential Information and not misuse it.3.2 Optaris will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies).
3.3 You agree that Optaris to help provide the Service will have the right to access Your Account and Your Data only to the extent necessary to provide the Service, including but not limited to responding to Your requests for support. This access must be done with your prior authorization in each case that is necessary.
3.4 We collect certain information about You, Subscribers and End Users, as well as Your and their respective devices, computers and use of the service. We use, disclose and protect this information as described in Our Privacy Policy, the current version of which is available at www.deyel.com/en/privacy-policy/ and which is incorporated into the Terms.
3.5 Optaris does not own any customer data. The Client will have sole responsibility for the accuracy, quality, integrity, legality, reliability, adequacy and intellectual property or right to use any and all of their data.
3.6 Insofar as Optaris processes Personal Data as part of Customer Data that is subject to the General Data Protection Regulation ("GDPR"), on behalf of the Customer, for the provision of services Described herein, the terms of the Optaris Data Processing Agreement https://www.deyel.com/en/data-processing-agreement/ which are incorporated herein by reference, will apply. For customers located in the European Union or the European Economic Area, the standard contractual clauses adopted by the European Commission, attached to the Data Processing Agreement with Optaris Inc. will apply. They provide adequate guarantees with respect to the personal data processed by us in accordance with these Terms, and in accordance with the provisions of our Data Processing Agreement. You acknowledge in all cases that Optaris acts as the data processor of Customer Data and You are the data controller of Customer Data under applicable data protection regulations in the European Union and the European Economic Area. The Client will obtain and maintain the consents necessary to allow the processing of Client Data under these Terms. If you are subject to the GDPR, you understand that if you give an integration provider access to your Deyel account, you serve as the data controller of such information and the integration provider serves as a data processor for the purposes of law and data regulations that apply to You. In no event will such integration providers be considered our sub-processors.
4. INTELLECTUAL PROPERTY RIGHTS
Each of us will retain all rights, titles, and interests in and to all of our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or property rights. (collectively, "Intellectual Property Rights"). The rights granted to You, Subscribers and End Users to use the Service under these Terms do not entail any additional rights in the Service, nor in any Intellectual Property Rights associated with it. Subject only to limited rights to access and use the Service as expressly permitted herein, all rights, titles, and interests in the Service and all hardware, software, and other components thereof or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Optaris. Optaris will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or use any suggestion, request for improvement, recommendation or other feedback that we receive from You, Subscribers or End Users . Optaris and other Deyel product and service names, and logos used or displayed on the Service are trademarks or registered trademarks of Optaris (collectively, "Marks"), and You may only use such Marks to identify You as a Subscriber; provided that you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctive character of the Marks, or use the Marks to discredit or misrepresent Optaris and its services or products.5. THIRDPARTY SERVICES
If You decide to enable, access or use Other Services, please note that Your access to and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or obligated, and we do not represent any aspect of such Other Services, including, without limitation, their content or the way they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Optaris with respect to such Other Services. Optaris is not responsible for any damage or loss caused or alleged to be caused by or in connection with your enabling, accessing, or use of such Other Services, or your reliance on the privacy practices, data security processes, or other policies of such Other Services. . You may be required to register or log in to such Other Services on their respective websites. By enabling any Other Service, You are expressly allowing Optaris to disclose Your Login and Your Data as necessary to facilitate the use or enablement of such Other Service.6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Unless otherwise stated in a Form that references these Terms and subject to Section 6.2, all charges associated with Your access to and use of the Service ("Subscription Charges") must be paid in full at initiation of Your Subscription Term. If You do not pay your Subscription Charges or charges for other services indicated in any Form that references these Terms within ten (10) business days after Our notification to You that the payment is overdue or delinquent, or if You do not update payment information upon Our request, in addition to Our other legal courses, We may suspend or terminate access to and use of the Service to You, Subscribers, and End Users.6.2 If You choose to upgrade Your Service Plan or increase the number of Subscribers or authorized End Users during Your Subscription Term (a "Subscription Upgrade"), the increases in Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your current Subscription Term, charged to Your Account and owed and payable upon the implementation of such Subscription Update. In any future Subscription Term, Your Subscription Charges will reflect such Subscription Improvements.
6.3 No refunds or credits will be provided for Subscription Charges or other fees or payments if You choose to reduce Your Service Plan. The reduction of Your Service Plan may result in the loss of content, functions or the capacity of the service, which is available to You in Your Account, and Optaris does not accept any responsibility for such loss. Optaris reserves the right to contact You about special pricing if You maintain an exceptionally high number of End Users, or an unusually high monthly connection rate for a product, version or feature per Subscriber or other excessive load on the service.
6.4 Unless otherwise indicated, our charges do not include taxes, levies, duties or similar government fees, this includes value added taxes, sales tax, use tax and tax withholdings that may be levied by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes, except those that may be levied on Optaris based on its income. We will bill You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Tax if You are billed.
6.5 If you pay by credit card, the Service provides an interface for the account owner to change the credit card information (for example, when renewing the card). The Account owner will receive a receipt for each payment received by Optaris, or they can obtain a receipt from the Service to track the status of the subscription. Optaris uses an external intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information, except to process Your credit card information for Optaris.
7. CANCELLATION AND TERMINATION
7.1 Both You and Optaris may choose to terminate Your Account and subscription to the Service from the end of your current Subscription Term by notification, in accordance with these Terms, in or before the ten (10) days prior to the end of such Subscription Term. Unless Your Account and subscription to the Service are terminated in this way, Your subscription to the Service will be renewed for a Subscription Term equivalent in duration to the expiring Subscription Term. Unless otherwise provided in any Form, the Subscription Charges applicable to Your subscription to the Service for any of the following Subscription Terms will be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time the subsequent Subscription Term begins.7.2 No refunds or credits will be provided to You for Subscription Charges or other fees or payments if You decide to terminate Your subscription to the Service or cancel Your Account before the end of Your then-current Subscription Term. Upon termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of business. Your Data cannot be recovered once Your Account is canceled.
7.3 If You terminate Your subscription to the Service or cancel Your Account before the end of Your effective Subscription Term or We effect such termination or cancellation in accordance with Section 2.5 (c) or 7.4, in addition to other amounts You may owe Optaris, You must immediately pay the unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable in the event that You terminate your subscription to the Service or terminate your account as a result of a substantial breach of these Terms by Optaris, provided that You notify Optaris in advance of such breach and provide Optaris with no less than thirty (30) days to reasonably remedy such breach.
7.4 Optaris reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your rights and/or Subscribers or End Users rights to access and use the Service, and delete, disable and discard any of Your Data if We believe that You, Subscribers or End Users have violated these Terms. Unless it is legally prohibited to do so, Optaris will use all commercially reasonable efforts to contact You directly via email to notify You when it takes any of the above actions. Optaris will not be liable to You, Subscribers, End Users or any other third party for any modification, suspension or interruption of your rights to access and use the Service. Any suspicion of fraudulent, abusive or illegal activity by You, Subscribers or End Users may be referred to law enforcement authorities at our sole discretion.
8. DISCLAIMER OF WARRANTIES
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY OF ANY KIND TO THE GREATEST EXTENT PERMITTED BY LAW AND OPTARIS EXPRESSLY DISCLAIMS ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANDIZING, TITLE, SUITABILITY FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT OPTARIS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE YOU MAY OBTAIN FROM OPTARIS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.9. LIMITATION OF LIABILITY
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), ANY OF THE PARTIES OR THEIR AFFILIATES, OFFICIALS, DIRECTORS, EMPLOYEES, SUBSCRIBERS, PROVIDERS, OR LICENSORS SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST BUSINESS OR SALES, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS OF THIRD PARTIES OR THE SERVICE IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR COULD HAVE ANTICIPATED SUCH DAMAGES.9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, THE AGGREGATE LIABILITY OF OPTARIS TOWARDS YOU OR ANY THIRD PARTY ARISING FROM THESE TERMS OR OTHERWISE RELATED TO ANY SUBSCRIPTION, USE OR USE OF THE SERVICE, SHALL IN NO EVENT EXEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR EVENT THAT GIVES REASON TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE RISKS UNDER THESE TERMS BETWEEN PARTIES AND TO LIMIT THE POTENTIAL LIABILITY GRANTED BY THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER HAD OPTARIS ASSUMED ANY ADDITIONAL LIABILITIES OTHER THAN THOSE SET FORTH HEREIN. OPTARIS HAS RELIED ON THESE LIMITATIONS TO DETERMINE WHETHER IT GIVES YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED IN THESE TERMS.
9.3 The limitations in Section 9.1 and Section 9.2 shall not apply to any willful breach of confidentiality under Section 3, nor to Our indemnification obligations under Section 10.
9.4 Some jurisdictions do not allow the exclusion of implied warranties or the limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OPTARIS' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
10. INDEMNIFICATION
10.1 Optaris shall indemnify You and hold harmless against any claim against You by reason of Your use of the Service as permitted in this document, submitted by a third party claiming that the Service infringes or misappropriates a valid patent in the US, copyright, trademark or trade secret (an "IP Claim"). Optaris shall, at its expense, defend such IP Claim and pay the damages and losses finally awarded against You in connection therewith, including the reasonable fees and expenses of attorneys hired by Optaris for such defense, provided that (a) You promptly notify Optaris about the threat or notice of such IP Claim, (b) Optaris shall have the sole and exclusive control and authority to select defense attorneys, defend and/or solve any Intellectual property claim, and (c) You shall fully cooperate with Optaris in relation to that. If use of the Service by You, Subscribers or End Users has become, or in Optaris' opinion may become the subject of any IP Claim, Optaris may, at its option and cost (a) provide You with the right to continue using the Service as set forth below; (b) replace or modify the Service so that it is not infringing; or (c) if options (a) or (b) are not commercially and reasonably feasible as determined by Optaris, terminate your subscription to the Service and refund, on a pro-rata basis, the Subscription Charges previously paid to Optaris for the unused portion corresponding to Your Subscription Term. Optaris will have no liability or obligation under this Section 10.1 with respect to any Intellectual Property Claim if such claim is caused in whole or in part by (i) compliance with the designs, data, instructions or specifications provided by You; (ii) modification of the Service by someone other than Optaris; or (iii) the combination, operation or use of the Service with other hardware or software where the Service itself would not have infringed. The provisions of this Section 10.1 establish Optaris' sole, exclusive and complete liability towards You and constitute its sole remedy with respect to an intellectual property claim submitted for reasons of access or use of the Service by You, Subscribers or End Users.10.2 You will indemnify and hold Optaris out of any lawsuit brought by a third party against Optaris arising out of or related to the use of the Service by You, Subscribers or End Users that violate these Terms or matters that You may have expressly accepted as responsible in accordance with these Terms; provided Optaris promptly advises you of the threat or notice of such claim.
11. ASSIGNMENT; ENTIRE AGREEMENT; REVIEWS
11.1 You may not, directly or indirectly, by law or otherwise, assign all or part of these Terms or Your rights under these Terms or delegate the performance of Your duties under these Terms without the prior consent of Optaris. We may, without your consent, assign our agreement with You to any affiliate or in connection with any merger or change of control of Optaris or the sale of all or substantially all of our assets, provided such successor agrees to fulfill their obligations under these Terms. Subject to the above restrictions, these Terms will be fully binding, beneficial and enforceable by the parties and their respective successors and assignees.11.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Optaris with respect to its content. We may modify these Terms from time to time, in which case the new Terms will supersede previous versions. We will announce any material changes to these Terms by email or in-app messages at least seven (7) days before they take effect. Optaris' failure to enforce any provision of these Terms at any time does not constitute a waiver of that provision or any other provision of the Terms.