OpenText™ Core Cloud Services
Terms of Service
Welcome to the OpenText Core Cloud Services!
These Terms of Service apply to your use of and access to the OpenText Core Cloud Services, including the OpenText Core website www.core.opentext.com (the " Site "), OpenText plugins, clients and mobile applications (each, an " Application "), any information or documentation that OpenText makes available to you (the " Documentation ") (collectively, the Site, Documentation, together with each Application, is referred to as “ OpenText Core ” or the “ Services ”), and any materials, including files, text, videos, images, and other content you post or upload to the Site (collectively, " User Content ").
These Terms form a binding contract between OpenText and you. PLEASE READ THE TERMS CAREFULLY.
BY OPENING AN ACCOUNT FOR THE SERVICES, OR OTHERWISE ACCESSING AND USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND THAT YOU CONSENT TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH OR REFERENCED IN THE TERMS, YOU MAY NOT OPEN AN ACCOUNT FOR THE SERVICES OR OTHERWISE USE OR ACCESS THE SERVICES.
YOU MUST BE 18 YEARS OF AGE OR OLDER TO OPEN AN ACCOUNT FOR THE SERVICES OR OTHERWISE USE OR ACCESS THE SERVICES.
1. USE OF THE SERVICES
The Services are an Internet-based knowledge and information management platform that are designed to allow you and, if applicable, authorized users to store and share User Content. By using the Services, you and, if applicable, other authorized users may place, upload, post, and share User Content with each other and communicate via posts related to such User Content or other communication capabilities that may be provided by OpenText.
We reserve the right to make changes, updates, or modifications to the Services at any time for any reason without notice to you. If you object to any such changes, you may not continue to use or access the Services and any part thereof and your sole recourse will be to stop using the Services.
You agree that you will use the Services solely in compliance with these Terms and all applicable laws.
2. MODIFICATION OF THE TERMS
We reserve the right, at our sole discretion, to change, modify, and/or add to the Terms, in whole or in part, at any time. Such changes will be effective when posted on the Site or on the effective date specified in our posting or other notice. You agree to review the Terms periodically to ensure you are aware of any changes to the terms and conditions that apply to you. We may notify you of material changes to the Terms by sending a notice to the email address associated with your Account, posting a notice on the site, or by other methods that we may communicate to you. Your use of and access to the Services or any part thereof after any changes become effective will be considered your acceptance of those changes and will constitute your agreement to be bound thereby. If you object to any such changes, you may not continue to use or access the Services and any part thereof and your sole recourse will be to stop using the Services.
3. PRIVACY AND SECURITY
4. SUBSCRIPTIONS; YOUR ACCOUNT; AND CANCELLATIONS
a. Your Subscription, Account, and Password
OpenText may offer both free subscriptions (each, a "Free Subscription") and different categories of paid subscriptions (each, a "Paid Subscription") to access and use the Service (each, a "Subscription"). To begin a new Free Subscription or Paid Subscription you must create an OpenText Core account (an “Administrator Account”) and you will be the administrator of such Subscription (the "Admin"). If you begin a Paid Subscription or upgrade a Free Subscription to a Paid Subscription, as the Admin, you will have the ability to invite other users to open an OpenText Core user account (each, a "User Account") in order to access and use the Services associated with your Paid Subscription. These Terms use the term "Account" to refer to either an Administrator Account or User Account.
BY CREATING AN ACCOUNT AND SUBSCRIBING TO OR USING THE SERVICES, YOU AFFIRM THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND ARE FULLY ABLE TO ENTER INTO AND COMPLY WITH THE TERMS AND BE LEGALLY BOUND THEREBY.
If you do not create an Account, your access to and use of the Services will be limited to those parts of the Services, if any, that we make available to the general public.
To create an Account, you must complete the registration form that is provided through the Site. Your email address will be your user ID. Only one Account may be associated with a unique email address. Therefore, if you wish to open more than one Account and keep such Accounts separate, you must use a unique email address for each Account.
You agree to provide only true, accurate, current, and complete information to us about yourself when you create an Account. You also agree to update the information you provide as necessary to keep such information accurate and up to date and you are responsible for the consequences of your failure to do so, including our reliance on the information you provide or we obtain in connection with your Account. You agree that you will not provide false information about you or anyone else, and you will not impersonate anyone else or otherwise misrepresent your affiliation with any person or entity. We have the right to suspend or terminate any Account if we suspect the information you provide does not comply with any of these requirements.
You agree that only you will use or access your Account and that the Account may not be used or shared by more than one individual. You agree to keep your password confidential and that you will not share it with, or reveal it to, anyone else. You should select a password that is difficult to guess and complies with any applicable password requirements posted on the Site. If you open a User Account, the Admin of the Paid Subscription that is associated with your User Account may have the ability to configure additional password requirements.
If you created an Account, and have subscribed to or are using the Services, on behalf of your employer or other third party, then such third party may have full rights to manage and administer your Account, including without limitation, cancelling your Account, viewing your Account profile, or accessing any User Content that may be associated with your Account.
You, not OpenText, are solely responsible for your Account. OpenText is not liable for any loss or damage arising from any unauthorized access to, or use of, your Account. If you believe there has been unauthorized access to, or use of, your Account, you must notify us immediately by contacting: firstname.lastname@example.org.
1. Subscription Models
Each Subscription model may have different functionality and features and have certain restrictions on usage, including, without limitation, restrictions on the number of authorized users that can open User Accounts associated with a particular Paid Subscription, the total amount of electronic storage space available for your account, the maximum file size for files uploaded to your Account, and various administrative user management and access controls. The terms applicable to each Subscription model currently offered by OpenText can be found at the following link: https://core.opentext.com/terms.html.
2. Subscription Term
Unless a different Subscription Term is specified in an order document entered into by you with OpenText, after you open an Administrator Account and choose a Subscription model, your Subscription will continue and automatically renew on a monthly basis from the date in which you open your Administrator Account (the "Subscription Term") unless and until you cancel your Administrator Account, we terminate it, or you change your Subscription model in accordance with these Terms. If you change your Subscription model (.e.g., by upgrading your Free Subscription to a Paid Subscription or changing your Paid Subscription model), the beginning of the Subscription Term will reset to the date on which the change to your Subscription model takes place. You must pay all Fees associated with your Paid Subscription in advance of the Subscription Term.
3. Changes to a Paid Subscription
If you are the Admin of a Paid Subscription, and wish to change to a lower tier Paid Subscription model, you must ensure that all Accounts associated with your Paid Subscription meet all of the requirements of the lower tier Paid Subscription model and you must pay any Fees that may be applicable to the new lower tier Paid Subscription in advance of the Subscription Term. By way of example only, if you have subscribed to a "Third Tier" Paid Subscription that permits each user to host up to 50 different versions of a single file, and wish to move to a lower "Second Tier" Paid Subscription that permits each user to host up to 25 different versions of a single file, you or the authorized user must remove file versions so that no single file has more than 25 different versions associated with it before you can downgrade your Paid Subscription from the Third Tier Subscription to the Second Tier Subscription. If you have paid any Fees associated with the higher tier Subscription model, you will receive a credit for any unused portion of the higher tier Subscription model to which you previously subscribed unless you downgrade from a Paid Subscription to a Free Subscription. OpenText will apply the credit to the Fees that apply to the new Paid Subscription. For changes to your Paid Subscription that are not an upgrade or downgrade to another Paid Subscription (e.g., reduction in the number of User Accounts for a Paid Subscription), you may be entitled to a credit that will be applied to your Fees due at the beginning of the next Subscription Term for the Services. Please see https://core.opentext.com/faq.html for details. If you add User Accounts to your Paid Subscription, we will immediately charge your Payment Method a prorated fee for such User Accounts through the remainder of the current Subscription Term.
4. Upgrading a Paid Subscription
If you are the Admin of a Free Subscription or Paid Subscription, and wish to change to a paid Subscription or higher tier Paid Subscription model, as applicable, you must pay any Fees that may be applicable to the new Paid Subscription in advance of the Subscription Term. If you have paid any Fees associated with the lower tier Subscription model, you will receive a credit for any unused portion of the lower tier Subscription model to which you previously subscribed. OpenText will apply the credit to the Fees that apply to the new Paid Subscription.
c. Cancellation of Accounts
1. Cancellations of User Accounts
You may cancel your User Account, at any time, by following an applicable cancellation process that may be described on the Site or by contacting us by sending an email to OpenText's support department: email@example.com. If you cancel by email, OpenText may require you provide additional information to verify your identity before we cancel your User Account. If you cancel your User Account, your access to the Services associated with the Paid Subscription will terminate immediately upon completion of the cancellation process. Cancellation of a User Account will cause any User Content associated with your User Account to be deleted within 90 days after cancellation.
2. Cancellations of Administrator Accounts
You may cancel your Administrator Account, at any time, by following an applicable cancellation process described on the Site or by contacting us by sending an email to OpenText's support department: firstname.lastname@example.org.
If you cancel by email, OpenText may require you provide additional information to verify your identity before we cancel your Administrator Account. You may request to cancel your Administrator Account either (i) immediately upon completion of the cancellation process, in which case the Services will immediately cease, or (ii) at the end of the Subscription Term, in which case the Services will cease at the end of the current Subscription Term.
Upon completion of the cancellation process no user will have access to his or her Account, including all User Accounts that are associated with the Paid Subscription. You will not receive a refund or credit for any unused portion of Fees paid to OpenText.
We may maintain a copy of all User Content associated with your Paid Subscription for up to thirty (30) days after you cancel your Administrator Account, however, we are not required to maintain a copy of such User Content. If you would like to access or retrieve a copy of such User Content during this period, or reinstate your Administrator Account during this period, please contact us by sending an email to OpenText's support department, in which case we can determine whether your User Content is available: email@example.com.
You must cancel your Administrator Account for your Paid Subscription before your Subscription Term renews in order to avoid incurring Fees for the subsequent Subscription Term.
d. Sharing Requests and Merger of Accounts
If you have an Account for a Free Subscription, and the domain of the primary email address associated with your account is owned by a legal entity and was assigned to you as an employee, contractor or member of the entity, and that organization establishes a commercial relationship with us for the Services and elects to add your account to that relationship, then, unless you change the email address associated with your account, your account may become subject to the commercial relationship between us and that entity and controlled by that entity. you may be able to merge your Account into another user's Paid Subscription.
To merge your Account, the Admin of the Paid Subscription must have at least one unallocated User Account available and must send you a sharing request. If you accept the sharing request, your Account will become a User Account within the Paid Subscription and all of your User Content will be merged into the Paid Subscription and made available to all other users who have Accounts within the Paid Subscription.
5. FEES AND PAYMENTS
The following additional terms and conditions apply if you open an Administrator Account and purchase a Paid Subscription to the Services:
a. Fees, Taxes and Incidental Expenses
You agree to pay all currently published fees for such Services that are posted on the Site ("Fees") in advance of the Subscription Term. Fees for the OpenText Core Services can be reviewed by clicking on the following link: https://core.opentext.com/pricing.html.
All Fees are exclusive of taxes and incidental expenses you may incur as a result of using the services. Examples of incidental expenses are costs your Internet provider or telecommunications carrier may charge you for accessing the Internet or transferring User Content from your Device to the Site. In addition, if you pay the Fees using a credit card issued by a bank outside of the United States, your bank may charge you foreign transaction fees. You are solely responsible for any taxes and incidental expenses you may incur.
b. Fee Changes
We reserve the right to adjust the Fees for the Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. For any Fee adjustments, we will notify you in advance, either through a posting on the Site or by email to the address you have most recently provided to us. Any Fee adjustments will take effect at the beginning of the next Subscription Term for the Services. If you do not agree to the Fee adjustment, you must cancel and stop using the Services.
c. Upgrading or Downgrading a Paid Subscription
If you upgrade or downgrade a Paid Subscription to another Paid Subscription model, you must pay any Fees that may be applicable to the new Paid Subscription model in advance of the Subscription Term for the new Paid Subscription model. If you have paid any Fees associated with a prior Subscription model, you will receive a credit for any unused portion of the Subscription model to which you previously subscribed. OpenText will apply the credit to the Fees that apply to the new Paid Subscription.
d. Payment Methods and Billing
We accept only the following methods of payment for Paid Subscriptions: Visa, MasterCard and American Express credit cards (each, a "Payment Method").
All Fees and payments must be in U.S. dollars.
You authorize us to charge the Fees to your Payment Method in advance of each Subscription Term. We will automatically charge your Payment Method on the date you open a Paid Subscription or change to another Paid Subscription model and in advance of each Subscription Term for your Paid Subscription. All Services are prepaid and are non-refundable.
You agree to keep all information in your Account current and to provide accurate and complete information concerning your Payment Method. You may edit your Payment Method information or modify your Account information at any time through your Account settings.
e. No Refunds
PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS.
6. OUR RIGHTS TO SUSPEND OR TERMINATE YOUR USE OF THE SERVICES
We may suspend or terminate your Account or the Services, including any portion thereof, such as discontinuing the availability of the Services on a particular Device, at any time and without notice to you without incurring liability of any kind.
For example, we may suspend or terminate your access to or use of the Services for: (i) the actual or suspected violation of these Terms; (ii) the use of the Services in a manner that may cause us to have liability; (iii) our suspicion or detection of malicious code, virus or other harmful code associated with your Account; or (iv) your use of excessive storage capacity or bandwidth. If, in our determination, the suspension might be indefinite or we have elected to terminate your access to the Services, we may use reasonable efforts to notify you. YOU ACKNOWLEDGE THAT IF YOUR ACCOUNT OR ACCESS TO THE SERVICES IS SUSPENDED OR TERMINATED, YOU MAY NO LONGER HAVE ACCESS TO ANY USER CONTENT.
In addition to our other rights of termination, if your Administrator Account associated with a Free Subscription remains inactive for a period of ninety (90) days it may be removed and all User Content associated with such Account may be deleted by us without any notice to you.
7. USER CONTENT
The Services allow User Content to be uploaded and downloaded, and for User Content to be accessed, hosted, shared or published. After you create an Account, if you are an Admin you may upload, download and post User Content. If you are the Admin of a Paid Subscription, you may invite other users to open a User Account in order to upload, download, and post User Content. If you have a User Account under a Paid Subscription, your Admin may resitrct your ability to upload, download or access User Content. By using the Services (including occasions when you share your User Content with other authorized users of the Services), you understand and agree that some information may be visible to other users of the Services, including without limitation, certain profile information associated with your Account and your User Content.
All User Content is the sole responsibility of the person who originated such User Content. We may monitor User Content posted via the Services but we do not control and cannot take responsibility for such User Content. We do not endorse User Content and we have no control over the content of User Content submitted by you or other users. Any use or reliance on any User Content or materials posted via the Services or obtained by you through the Services is at your own risk. We reserve the right to prevent you from submitting User Content and to delete User Content for any reason at any time, including without limitation, if we discontinue the Services or terminate your Account.
You understand that by using the Services, you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Services.
As between you and OpenText, you or your licensors own all right, title and interest in and to the User Content.
By submitting, posting or displaying User Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content solely (i) to provide the Services to you and your authorized users, (ii) to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law, (iii) for statistical use, and (iv) as necessary to monitor and improve the Services.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content.
8. YOUR CONDUCT AND RESPONSIBILITIES
a. Acceptable Use Policy
Your use of and access to the Services is subject to our Acceptable Use Policy, which can be accessed here https://core.opentext.com/acceptable.html.
b. Device Usage
It is your responsibility to safeguard your Devices used to access or use the Services. The Services may use data received or obtained from your Device or the Application on that Device (“Device Data”) and agree that we may use your Device and Device Data in order to provide the Services to you. You are solely responsible for any additional Device usage fees, including without limitation, fees for accessing the Internet and transmitting data over a wireless carrier network.
c. User Content Responsibilities
We have no obligation to monitor any User Content that you submit to the Services or post on the Site. You are responsible for the accuracy and quality of the User Content that you submit to the Services or post on the Site. You must ensure that your User Content complies with these Terms and applicable laws and regulations. You agree to promptly address and resolve any notices and claims from any third parties claiming that User Content violates third party rights.
We have no liability of any kind resulting from any deletion, loss, corruption, or destruction of User Content. The Services are not designed to provide backup or archival storage of User Content. To prevent User Content from deletion, loss, corruption, or destruction, you must retain separate archival and backup copies of any User Content that you submit to the Services or post on the Site.
d. Prohibited Conduct
You agree that you will not use the Services to harm the Services or cause harm to others. You agree that you will not, and will not encourage or assist any third party, do any of the following:
(1) engage in activity that harms or disrupts the operation or performance of the Services,
(2) misrepresent your identity, impersonate any person or attempt to gain access to or illegally track any Account, user, Device, system or network related to the Services,
(3) use or manipulate the Services in any manner not permitted by us,
(4) use the Services in a manner that results in excessive bandwidth usage, as determined by us,
(5) use the Services for any illegal purpose, or to publish, post, share, copy, store, backup or distribute any illegal files or data,
(6) use the Services to publish, post, share, copy, store, backup or distribute material protected by intellectual property rights of a third party unless you own or have necessary rights to such material,
(7) use the Services to publish, post, share, copy, store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of the Services or another person's Device or property,
(8) engage in online activities that would encourage other parties to cause damage to the Services,
(9) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services or the software used to provide the Services or attempt to discover or recreate the source code of such software, except and only to the extent that applicable law expressly permits ,
(10) alter or modify any disabling mechanism which may be included in Services,
(11) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Services,
(12) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) from the Services ,
(13) use the Service s for High Risk Activities. (“High Risk Activities” shall mean the operation of online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, life support systems or weapons systems in which the failure of the Service could lead to death, personal injury, or severe physical or environmental damage ).
9. OPENTEXT PROPRIETARY RIGHTS
All patent, copyright, trademark, trade secret, ownership, license, intellectual property, and other rights and interests in the Services shall remain solely with OpenText, including its licensors. As between OpenText and you, OpenText or its licensors own and reserve all right, title and interest in and to the Services and all hardware, software and other items used to provide the Services. The Services, and any part thereof, are not being sold to you. No title to or ownership of any proprietary rights related to the Services is transferred to you or any user under these Terms.
OpenText may have patents, patent applications, trademarks, copyrights or other intellectual property rights that may be protected by national and international copyright laws and treaties, as well as other laws and treaties. Except as otherwise expressly provided under these Terms, we are not giving you any licenses to any such intellectual property by providing the Services to you. All rights not explicitly granted to you are reserved by us.
OpenText is free to use any comments, suggestions, recommendations, and other feedback, including without limitation, with respect to modifications, enhancements and improvements, (“Feedback”) you provide with respect to the Services for any purpose, without obligation. By submitting Feedback to us, you agree that you have the right to provide Feedback to us and that you hereby agree to grant OpenText an irrevocable, worldwide, perpetual, royalty-free license to use the Feedback for any purpose, including without limitation, to incorporate any such Feedback into the Services that OpenText generally provides to its customers.
10. LICENSE TO OPENTEXT CLIENTS AND THIRD PARTY COMPONENTS
As part of the Services, we may provide you with an Application to interact with the Site or to otherwise use and access the Services. Y ou may be required, or have the option, to download an Application to install on your computer, tablet, smartphone or any other electronic device (each, a "Device") for use with the Services . The Services may automatically update any Application that is installed on your Device when a new version is available.
Subject to these Terms, OpenText grants you a personal, non-exclusive, non-transferable, non-assignable limited and revocable license to use the Applications provided to you by OpenText as part of the Services solely on a device that is owned or controlled by you (“User License”). The User License is for the sole purpose of enabling you to use and enjoy the benefit of the Services, as provided by us, in the manner permitted by the Terms. Any and all Applications are licensed and not sold. Unless we notify you otherwise, the Application license immediately terminates when the Services are terminated or cancelled.
The Services may contain or be provided together with open source software. Each component of open source software may be subject to its own license terms which can be found at: https://core.opentext.com/opensource.html. You acknowledge that license terms accompanying such open source software will govern its use.
11. THIRD PARTY SITES, PRODUCTS AND SERVICES
The Services may contain features and functions that enable users to post links to third-party websites, some of which may offer products or services (“Third-Party Sites”). We are not responsible for Third-Party Sites nor do we endorse any Third Party Sites. We do not monitor or otherwise review Third-Party Sites and we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any Third-Party Sites. If you choose to rely on any Third-Party Sites, you are doing so at your own risk. You may also be subject additional terms and conditions associated with the use of such Third Party Sites, and any such terms and conditions are solely between you and the applicable third-party.
12. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENTEXT: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE SERVICES OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, BE TIMELY OR SECURE, OR THAT USER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE SERVICES OR SITE. USE OF THE SERVICES AND SITE ARE AT YOUR SOLE RISK.
Some jurisdictions do not allow limitations of implied warranties, so certain limitations stated above may not apply to you. In that event, such warranties are limited to the minimum warranty period permitted by applicable law.
To the maximum extent permitted by applicable law, you agree to indemnify and hold us and our respective officers, directors, employees, representatives, licensees, authorized designees, successors and assigns, harmless from and against any and all claims, actions, liabilities, damages, losses, costs, expenses, fees (including reasonable outside attorneys' fees and costs) that such parties may incur as a result of or arising from your use of or access to the Service or breach of the Terms. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. This provision shall remain in full force and effect notwithstanding any termination or cancellation of your use of or access to the Services. We will provide you with notification of any such claim or demand that is subject to your indemnification obligation.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENTEXT AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, LICENSEES, AUTHORIZED DESIGNEES, SUCCESSORS AND ASSIGNS, BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR USER CONTENT, OR BUSINESS INTERRUPTION) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR ANY PART THEREOF, EVEN IF OPENTEXT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF OPENTEXT A ND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, LICENSEES, AUTHORIZED DESIGNEES, SUCCESSORS AND ASSIGNS, FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; PROVIDED, HOWEVER, IF THE SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN OPENTEXT SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND OPENTEXT'S PROVISION OF THE SERVICES TO YOU, AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES.
THE ABOVE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THE REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. You may also have other rights that vary from jurisdiction to jurisdiction.
15. ELECTRONIC COMMUNICATIONS AND NOTICES
From time to time we may need to get in touch with you regarding the Terms, the Services and/or other matters related to your Account. We may provide information to you by email using the email address you provided to us when you opened your Account. You consent to receive communications from us electronically. If you do not agree to receive notices regarding the Services by email, you must not use the Services. Notices emailed to you will be deemed received by you when the email is sent by us. We do not accept any liability or responsibility for emails or other electronic communications that are filtered, intercepted, lost, or not received.
You agree that all disclosures, notices, agreements, and other communications you receive from us electronically satisfy any legal requirement for such communications to be in writing. You may be required to have certain hardware and software to access and retain such communications, which is your sole responsibility.
You may provide legal notices to us by registered mail, return receipt requested, to the following address:
Open Text Inc.
Att: General Counsel
The Pyramid Center
600 Montgomery Street, Suite 1800
San Francisco, CA 94111
16. COMPLIANCE WITH LAWS
You agree to comply with all applicable local, state, national and foreign laws, rules and regulations in connection with your access to or use of the Services. Without limiting the foregoing, you agree to comply with all legal duties applicable to you as a data controller by virtue of submitting or storing User Content within the Service.
17. EXPORT RESTRICTIONS
The Services, including any Applications provided by us, are subject to applicable U.S. export laws and regulations. The laws and regulations of the U.S. restrict the export and re-export of commodities and technical data of U.S. origin, including software.
You will not export or re-export the Services or any part thereof, directly or indirectly, in violation of the laws of the U.S. or any foreign jurisdiction. In addition, you represent and warrant that the Services or any part thereof, will not be exported or re-exported to, or otherwise used in, any U.S.-embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
18. COPYRIGHT COMPLAINTS AND REMOVAL POLICY
We respect the intellectual property of others, and reserve the right to delete or disable User Content that appears to violate the Terms or applicable law. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. OpenText’s Copyright policy is available for your review at www.opentext.com.
19. GOVERNING LAW; VENUE
These terms shall be construed and enforced in accordance with the laws of the state of Delaware and the United States of America without regard to any choice of law or conflict of laws principles, regardless of where you live. You further agree that United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information transactions Act shall not apply to the Terms.
Any dispute between you and OpenText will be brought in a court in the city and county of San Francisco, California and each party irrevocably waives any claim or defense that such court does not have personal jurisdiction over the party or is an inconvenient forum for such dispute. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
IN ANY LEGAL, JUDICIAL OR OTHER PROCEEDINGS THAT MAY ARISE FOR ANY REASON HEREUNDER, YOU HEREBY IRREVOCABLY AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL.
a. Severability. If any provision of the Terms shall be held unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.
b. Waiver. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
c. Force Majeure. We will not be liable to you for any delay, interruption or other failure to perform under these Terms due to acts beyond our reasonable control, including, without limitation, natural disasters, wars, riots, terrorist activities, Internet service providers and other third parties, explosions and fires, strikes and labor disputes, governmental decrees and other acts beyond our reasonable control.
d. Assignment. We may assign or transfer these Terms or our rights and obligations under these Terms, in whole or in part, to any third party at any time without notice. You may not assign or transfer these Terms or any of your rights and obligations, in whole or in part, without our prior written consent, and any attempt by you to do so will be invalid and void.
e. Independent Contractors; Third Party Beneficiaries. You and we are independent contractors, and nothing in these Terms creates a partnership, employment relationship or agency. There are no third-party beneficiaries of these Terms.
f. U.S. Government Use. If you are a U.S. government entity, you acknowledge that any Applications and Documentation are provided as "Commercial Items" as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
g. Entire Agreement. These Terms constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof.
h. Rules of Construction. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms.
i. Survival. The following provisions shall remain in full force and effect notwithstanding any termination of your use of the Services: Sections 2, 3, 4c, 5a, 5d, 5e, 6, 8-9, and 12-20.