O'Neil Web ServicesTM Customer Agreement
Updated April 9, 2010
PLEASE READ CAREFULLY – THIS IS A BINDING AGREEMENT
THIS O'NEIL CUSTOMER AGREEMENT IS A BINDING AGREEMENT BETWEEN O'NEIL DATATECH LLC ("O'NEIL") AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT ("LICENSEE").
BY CLICKING THE "ACCEPT" BUTTON FOR THIS AGREEMENT OR ACCEPTING ANY MODIFICATIONS TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT OB BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "LICENSEE" SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE "DECLINE" BUTTON AND YOU MAY NOT USE THE SERVICES.
The Agreement includes the following Sections:
1. The Services
2. Modifications to the Agreement
3. Term, Termination and Suspension
4. Authorization and License to Use the Services
5. License to Use O'Neil Properties
6. Downtime and Service Suspensions; Security
9. Intellectual Property Rights
10. Representations and Warranties
11. Indemnification; Limitation of Liability and Remedies
13. Miscellaneous Provisions
1. The Services
The services covered by this Agreement are web services that O'Neil makes available to facilitate and assist with the management of assets/records by end users, third party software providers, and or commercial record centers. Services are provided under specific brand name as detailed below:
RMBridge – RMBridge is a web service that allows end users to utilize their in-house file room software to access their off-site assets/records which are stored in commercial or off-site record centers utilizing O'Neil Software RS-SQL products.
2. Modifications to the Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of the Agreement or such Additional Policy on the O'Neil DataTech LLC Website (www.oneildatatech.com).
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to the check the O'Neil DataTech LLC Website regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
3. Term, Termination and Suspension
3.1. Term. The term of this Agreement ("Term") will commence, and you may begin using the Services, once you agree to the terms and conditions of this Agreement by clicking the "Accept" button below and complete the registration process for your O'Neil Web Services account. The Agreement will remain in effect until terminated by you or us in accordance with Section 3.
3.2. Termination by Licensee for Convenience. Licensee may terminate this Agreement for any reason or no reason at all, at your convenience, by providing us written notice of termination in accordance with Section 12.
3.3. Termination by O'Neil Other Than for Cause.
O'Neil may terminate this Agreement for any reason or no reason at all by providing the Licensee with a ninety (90) day written notice of termination in accordance with Section 12.
3.4. Termination or Suspension by O'Neil for Cause.
We may suspend your right and license to use any individual Service or set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to the Licensee in accordance with the notice provisions set forth in Section 12 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the O'Neil Properties poses a security or service risk to us, to any user of services offered by us; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) you are in default of your payment obligations hereunder; (v) in the event that you materially breach the provisions of this Agreement; (vi) you use any of the O'Neil Content or Trade Marks other than as expressly permitted herein; (vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using O'Neil Service for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become unfeasible for any legal or regulatory reason; or (ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 12 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.
3.5. Effect of Termination. Upon termination of this Agreement for any reason: (i) Licensee will promptly return to O'Neil, in electronic and paper form, all of the O'Neil Properties, including any confidential information in the possession of any of its employees or subcontracted personnel.
3.6. Survival. In the event this Agreement is terminated for any reason, Sections 3.5, 3.6, 3.7, 4.2, 6, and 8 through 13 will survive any such termination.
3.7. Post-Termination Assistance. Following the suspension or termination of your right to use the Services for any reason other than for a cause termination (i.e. a termination under Sections 3.2 or 3.3) you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services. We may also endeavor to provide the Licensee unique post-suspension or post-termination assistance made available uniquely to you, conditioned upon your acceptance of and compliance with any fees and terms we specify for such assistance.
4. Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service Fee detail page on the O'Neil DataTech LLC Website (as such payment terms may be updated from time to time), we hereby grant the Licensee a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Permitted Uses. License may write or develop application software, or other services or technology that you interface with, the Services (collectively "Applications"). Licensee acknowledges that we may change, or republish API's for any Service or feature of a Service from time to time, and it is your responsibility to ensure the calls that you make to any Service are compatible with the then current API's for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time.
4.2. Restricted Uses. Licensee agrees that it shall not, nor shall it authorize others (including End Users), to: (i) reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of or any other feature, part or portion of the Services; (ii) grant any rights in, transfer, time-share or otherwise assign to any third party any of the features or functionality of the Services or any of the Licensee's rights in licenses thereto, or use the Services to operate a time sharing service, service bureau or perform services for third parties; or use the Services in any manner not contemplated by this Agreement.
5. License to Use the O'Neil Properties
5.1. O'Neil Properties. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, sample code, and other printed and electronic documentation. Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property and proprietary rights in the O'Neil Properties, only to install, copy and use the O'Neil Properties solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement.
6. Downtime and Service Suspensions; Security
6.1. Downtime and Service Suspensions. O'Neil's goal and intention is to use commercially reasonable efforts to maintain up time of the Service on a 24 hour / 7 day per week basis to support worldwide utilization of the Service. Licensee agrees and acknowledges that: (i) access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime, or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system failures or other interruptions; and (ii) O'Neil shall also be entitled, without any liability, to suspend access to any portion or all of the Service at any time, on a service-wide basis: (a) for scheduled downtime to permit O'Neil to conduct maintenance or make modifications to the Service; (b) in the event of a service attack or other attack on the Service or other event that O'Neil determines, in O'Neil's sole discretion, may create a risk to the Service, to Licensee, any User or to any of O'Neil's other customers if the Service was not suspended; or (c) in the event that O'Neil determines that any portion of the Service is prohibited by law or it otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). O'Neil shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Licensee may incur as a result of any Service Suspensions. To the extent able, O'Neil will use its commercially reasonable efforts to provide Licensee e-mail notice of any Service Suspension in accordance with the notice provisions set forth in Section 12 and to post updates on the O'Neil DataTech LLC Website regarding resumption of any Service following any such Service Suspension, but shall have no liability for the manner in which we may do so, or if we fail to do so.
6.2. Security by O'Neil. To protect the information and data which is transmitted over, across or through the Service via the Application, O'Neil shall, and shall only be required to, follow the following security procedures: (i) O'Neil shall ensure that the Service shall be protected at all times with industry-standard software and hardware firewalls, intrusion detection software and virus protection software, (ii) O'Neil shall procure an SSL Certificate for the Service; and (iii) O'Neil shall establish and maintain standard authentication procedures utilizing unique username and passwords regarding access to the Service by Licensee and its Users, such that each User's unique username and password will permit each such User access only to such User's User Records.
6.3. Security by Licensee. Licensee will (i) allow only authorized employees of Licensee to use each developer/administrator account and password provided by O'Neil to Licensee; (ii) take full responsibility for all activities by employees, consultants and Users of Licensee that occur under such accounts and the Service generally; and (iii) take reasonable measures to ensure that employees, consultants and Users of Licensee that access the Service do so solely through the authorized and proper use of such accounts and passwords.
7.1. Fees. In consideration of your use of any of the paid Services, you agree to pay the applicable fees in the amounts set forth on the respective Service Fee details and terms on the O'Neil DataTech LLC Website.
The parties each acknowledge and agree that in the course of performance of this Agreement, they may be exposed to or acquire information which is proprietary to or confidential to the other party (including, without limitation, any information relating to technology, marketing, product development or business plans, licensees or prospects, trade secrets and any other information not generally known to the public). Any and all of the foregoing information in any form obtained by the other party or its, agents, employees, consultants or representatives in the performance of this Agreement shall be deemed to be the confidential and proprietary information of such party. The parties agree to use reasonable efforts to hold such information in confidence but not less than those efforts that the party receiving such information uses to protect the confidentiality of its own confidential information of a similar nature, and (except as permitted hereunder) not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of this Agreement, and to advise each of their employees, agents and representatives of their obligations to keep such information confidential. All such confidential and proprietary information described herein, in whatever form, is hereinafter collectively referred to as "Confidential Information." The parties shall use commercially reasonable best efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, the parties shall use commercially reasonable best efforts to advise each other promptly in the event that either learns or has reason to believe that any person who has had access to Confidential Information has violated the terms of this Agreement, and to cooperate in seeking injunctive relief against any such person.
8.1. Non-Confidential Information. Notwithstanding the obligations set forth in Section 8 above, the confidentiality obligations of the parties shall not extend to information that (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through no fault of the receiving party; (ii) was already in the receiving party's possession without restriction on disclosure at the time of disclosure; (iii) is independently developed by the receiving party without use of the other party's Confidential Information; (iv) is rightfully obtained from a third party without restriction on disclosure; (v) is aggregated statistical information; or (vi) is required by law to be disclosed.
8.2. Name Use. Except as otherwise agreed in writing by the Parties, neither Party shall use the name, trade name, trademark or service mark of the other Party or its parents, subsidiaries or affiliates without prior written consent of the other.
9. Intellectual Property Rights
9.1. O'Neil Intellectual Property. The Parties agree that the Service (and all the underlying technology and software), O'Neil DataTech LLC Website and any enhancements or modifications thereto, are the sole and exclusive property of O'Neil, and except for the limited licenses granted in this Agreement, nothing in this Agreement should be construed as granting or assigning any right, title or interest in or to any of the Service or O'Neil DataTech LLC Website to Licensee or its Users. Licensee expressly and irrevocably assigns to O'Neil any and all right, title and interest, including all Intellectual Property Rights, that it may have in and to the Service, O'Neil DataTech LLC Website and deliverables of O'Neil therewith or enhancements and modifications thereto.
9.2. Licensee Intellectual Property. All right, title and interest, including all Intellectual Property Rights, in and to the Licensee Intellectual Property, together with any Licensee Content and the Application remains with Licensee.
9.3. Licensee Feedback. In the event the Licensee elects to communicate to O'Neil suggestions for improvements or modifications to the Service, O'Neil shall exclusively own all right, title, and interest in and to the same, including all Intellectual Property Rights thereto, even if Licensee has designated such feedback and communication as "confidential", and O'Neil shall be entitled to use and exploit such feedback without restriction. Licensee expressly and irrevocably assigns to O'Neil any and all right, title and interest, including all Intellectual Property Rights, that it may have in and to any and all such feedback and communications.
9.4. Non-Assertion. During and after the term of this Agreement, with respect to any of the Services and/or other works or developments, Licensee covenants and agrees that it will not assert, nor will it authorize, assist, or encourage any third party to assert, against O'Neil or any of O'Neil's customers, end users, business partners, licensors, sub licensees or transferees, any patent infringement, copyright infringement, trade secret infringement or other intellectual property infringement claim with respect to any of the Services and/or works or developments.
10. Representations and Warranties
10.1. Use of the Services. You represent and warrant that you will not use the Services, O'Neil Properties and your Application and Your Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iii) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
10.2. Applications and Content. Licensee represents and warrants that: (i) it is solely responsible for the development, operation, and maintenance of its Application and for Licensee Content and User Content, including, without limitation, the accuracy, security, storage, back-up, appropriateness and completeness of Licensee Content, User Content and all product-related materials and descriptions; (ii) it has the necessary rights and licenses, consents, permissions, waivers and releases to use and display its Application and the Licensee Content and User Content; (iii) neither its Application nor the Licensee Content (a) violates, misappropriates or infringes any Intellectual Property Rights of O'Neil or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; and (iii) that Licensee will conduct its business in a professional manner and in a way that reflects favorably on the goodwill and reputation of O'Neil.
10.4. Warranty Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT PURSUANT TO THIS SECTION 10, O'NEIL AND LICENSEE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT THERETO INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIS AGREEMENT, O'NEIL MAKES NO WARRANTIES WITH RESPECT TO THE SERVICE OR THE SERVICES PROVIDED THEREUNDER, ANY ADDITIONAL SERVICES PROVIDED UNDER THIS AGREEMENT OR TO ANY OTHER PRODUCTS OR SERVICES OF O'NEIL. O'NEIL DOES NOT WARRANT THAT THE SERVICE OR THE SERVICES PROVIDED THEREUNDER ARE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION.
11. Indemnification; Limitation of Liability and Remedies
11.1. General. Each Party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other Party and its directors, officers, members, shareholders, managers, employees and agents (the "Indemnified Parties") from and against any and all losses, damages, expenses (including reasonable attorney's fees) and liabilities resulting from any legal claims, actions or proceedings asserted by a third party against one or more of the Indemnified Parties arising out of, in connection with or based upon: (i) any breach of a representation or warranty made by the Indemnifying Party in this Agreement (ii) any breach of any covenant or obligation required to be performed, or complied with, by the Indemnifying Party contained in this Agreement; (iii) any negligent acts or omission of or any willful misconduct by an Indemnifying Party (including Indemnifying Party's personnel, subcontractors and agents.
11.2. Limitation of Liability. THE LICENSEE AGREES THAT THE O'NEIL EXCLUSIVE LIABILITY HEREUNDER RELATING TO THE SERVICES SHALL BE AS SET FORTH IN SECTIONS 10 AND 11, AND THAT THE O'NEIL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF ALL LICENSE FEES PAID BY THE LICENSEE TO O'NEIL PURSUANT TO THIS AGREEMENT IN THE PRIOR TWELVE (12) MONTHS FROM THE DATE THE LIABILITY WAS INCURRED, REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE. THE LICENSEE FURTHER AGREES THAT O'NEIL WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND AGAINST THE LICENSEE BY ANY OTHER PARTY (EXCEPT FOR SUCH CLAIMS AND DEMANDS ARISING FROM OR RELATING TO O'NEIL'S INDEMNITY OBLIGATION UNDER SECTION 11 OR A BREACH BY O'NEIL OF SECTION 10). IN NO EVENT WILL O'NEIL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF O'NEIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION DOES NOT APPLY TO LIABILITY ARISING FROM O'NEIL'S GROSS NEGLIGENCE OR INTENTIONAL ACTS.
11.3. Exclusion of Certain Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, TREBLE, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF RECORDS, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
11.4. Exclusion of Certain Additional Liabilities. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, O'NEIL ASSUMES NO LIABILITY HEREUNDER, AND SHALL NOT BE LIABLE FOR ANY LOSS, FOR OR RELATING TO: (A) ANY METHOD OR PROCESS IN WHICH THE SERVICES PROVIDED THEREUNDER MAY BE USED BY LICENSEE OR ANY USERS, (B) USE OF THE OTHER THAN CURRENT UNALTERED RELEASE OF THE SERVICES, (C) LICENSEE CONTENT AND USER CONTENT, (D) THE APPLICATION OR (E) THE COMBINATION, OPERATION OR USE OF THE SERVICES WITH NON-O'NEIL SOFTWARE PROGRAMS OR DATA INCLUDING, WITHOUT LIMITATION THE APPLICATION.
11.5. Sole Infringement Remedy of O'Neil.
11.5.1. If the Services, or any portion thereof, is endangered or disrupted due to infringement, misappropriation or violation claims made by third parties, O'Neil shall have the right, but not the obligation, at its sole and absolute discretion to: (i) modify or replace all, or the infringing, violating or misappropriated part, of the Service so that they are no longer infringing, violating or misappropriating, provided that the Service is functionally equivalent in all material respects to the Service in effect; or (ii) procure the right to continue using the infringing, violating or misappropriated part of the Service; or if in O'Neil's sole discretion O'Neil cannot reasonably do any of the actions provided for in clauses (i) or (ii) above, refund to Licensee the fees for the current period and terminate this Agreement.
11.5.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION (11.5), SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF O'NEIL TO LICENSEE, AND IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS BY A THIRD PARTY BASED ON THE SERVICES PROVIDED THEREUNDER.
11.6 Acknowledgement. The above exclusions and limitations in Sections 11.2., 11.3., 11.4. and 11.5., above shall apply regardless of (a) the form of claim or action; and (b) whether damages are foreseen or foreseeable, even if the charged Party has been advised of the possibility of such damages. These exclusions and limitations are conditions for entering into this Agreement.
12.1. To Licensee. Except as otherwise set forth herein, notices made by O'Neil to the Licensee under this Agreement that affect our Licensees generally (e.g., notices of updated fees, etc.) will be posted on the O'Neil DataTech LLC Website. Notices made by us under the Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
12.2. To O'Neil. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact O'Neil as follows:
O'Neil DataTech LLC
11 Cushing Suite 100
Irvine, CA 92618-4220
12.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
13. Miscellaneous Provisions
13.1. Assignment. This Agreement and all the terms and provisions herein shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, assigns and legal representatives, except that the Licensee shall not assign or otherwise transfer this Agreement (whether voluntarily, involuntarily, by operation of law or otherwise) to any person or entity without the prior written consent of O'Neil, and in no event shall said assignment result in a broadening of the scope of this Agreement, nor shall it inure additional economic benefits to said assignee. Notwithstanding the foregoing, Licensee, upon written notice to O'Neil, shall be entitled to assign this Agreement to a successor in interest of all or substantially all of its assets, or to a successor in interest by way of merger, consolidation or reorganization; provided that (i) Licensee is current in all of its obligations owing to O'Neil under this Agreement and (ii) the assignee executes O'Neil's then current License Agreement for the Service or the current terms and conditions. Any purported assignment in violation of this Section 14.1 shall be null and void.
13.2. Force Majeure. Neither Party shall have any liability to the other Party for any failure or delay due to any Force Majeure Event. In the event of such a Force Majeure Event, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure Event, but in no event more than thirty (30) days, and thereafter the Party that is not subject to the Force Majeure Event may terminate this Agreement immediately for any material uncured breach.
13.3. Governing Law. This Agreement shall be construed in accordance with the laws of the State of California (excluding any conflicts of laws provisions) and applicable laws of the United States of America, and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
13.4. Arbitration. Any dispute relating to or arising from this agreement shall be resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association. Arbitration will take place in Orange County, California, USA. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator(s). Service of a petition to confirm the arbitration award may be made by first class mail or by commercial express mail, to the attorney for the party or, if unrepresented, to the party at the last known business address. Notwithstanding anything to the contrary in this Agreement or in the Commercial Arbitration Rules of the American Arbitration Association, (i) any arbitrator(s) shall be bound by the terms and conditions of this Agreement, and (ii) except for the indemnification obligations of this Agreement, or for breaches of such obligations, in no event shall the arbitrator(s) award, and in no event shall either party be liable for, special, indirect, incidental, consequential or punitive damages, including without limitation, damages for loss of profits even if such party had been advised of the possibility of such damages. Notwithstanding the foregoing, each party agrees that in the event of breach or threatened breach of this Agreement, in addition to any other available remedies, the non-breaching party shall have the right to injunctive or other equitable relief from any court of competent jurisdiction, without the necessity of posting any bond or other security, to prevent the other's violations of its obligations hereunder.
13.5. Equitable Relief. Each Party acknowledges that a breach of Sections 4.2, 8., and 9.4 cannot reasonably or adequately be compensated in damages in an action at law and that such a breach shall cause the other Party irreparable injury and damage. By reason thereof, each Party agrees that the other Party shall be entitled, in addition to any other remedies it may have under this Agreement or otherwise and in addition to its right to escalate within management of the Parties and mediation as provided herein, to seek preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of the obligations relating to or to enforce the performance under Sections 4.2., 8., and 9.4 by the other Party.
13.6. Attorneys Fees. If either Party to this Agreement shall bring any action, suit, counterclaim, appeal, arbitration, or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder, the losing Party shall pay to the prevailing Party reasonable attorneys' fees and costs incurred in bringing and prosecuting such action and/or enforcing any judgment, order, ruling or award.
13.6. Waiver. No failure by either Party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
13.7. Release. The expiration or termination of this Agreement for any reason whatsoever shall not be deemed a release, nor shall it relieve either Party from any obligation under this Agreement which may have accrued prior thereto.
13.8. Relationship of Parties. The relationship of O'Neil and Licensee hereunder is that of independent contractors. In all matters relating to this Agreement, each of O'Neil and Licensee shall be solely responsible and liable for the acts of its employees and agents, and employees or agents of either Party shall not be considered employees or agents of the other. Neither Party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other Party, nor shall O'Neil or Licensee act or represent or hold itself out as having authority to act as an agent or partner of the other, or in any way to bind or commit the other to any obligations. Nothing in this Agreement is intended to create or constitute an employment, joint venture, partnership, agency, trust or other relationship or association of any kind between the Parties.
13.9. Waiver; Severability. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law. If any provision of this Agreement is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement, and the applicable court of competent jurisdiction shall be authorized to reform any such provision to effectuate the intent of the Parties.
13.10. Entire Agreement. This Agreement shall constitute the complete and entire agreement between the Parties and supersedes any prior or contemporaneous agreements between the Parties with respect to its subject matter. Neither Party shall be bound by any terms or conditions contained in any purchase order or other documentation issued by the other Party.
O’Neil complies with the U.S.–E.U. Safe Harbor framework and the U.S.–Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal data from European Union member countries and Switzerland. O'Neil Software Inc. has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view O'Neil Software Inc.’s certification, please visit http://www.export.gov/safeharbor/.
Personal Information means any information that may be used to identify an individual, including, but not limited to, a first and last name, a home or other physical address and an email address or other contact information, whether at work or at home. In general, you can visit O’Neil’s Web pages without telling us who you are or revealing any Personal Information about yourself.
O’Neil generally only collects Personal Information on the web for current O’Neil clients, or, those who have an interest in our products and services. We use personal information to establish an account or to contact you in regards to your interest of our product.
We may also disclose your personal information as required by law, such as to comply with a subpoena, or similar legal process and when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a government request.
If O’Neil is involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or a prominent notice on our Web site of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
If you choose to have a relationship with O’Neil, such as a contractual or other business relationship or partnership, we will naturally continue to contact you in connection with that business relationship.
Third Party Services
Third parties may provide certain services available on any of the O’Neil web sites on O’Neil’s behalf. O’Neil may provide information, including Personal Information that O’Neil collects on the Web to third-party service providers to help us deliver programs, products, information, surveys or other services. Service providers are also an important means by which O’Neil maintains our Web site and mailing lists. O’Neil will take reasonable steps to ensure that these third-party service providers are obligated to protect Personal Information on O’Neil’s behalf and will use these shared personal information only as necessary to provide these services to us.
In the specific case of our forms supported by Formstack (formstack.com), any data entered into these forms is encrypted. Formstack’s policy is to not distribute or sell any data, to 3rd party companies.
We seek to maintain reasonable security measures in order to attempt to protect against the loss or misuse of personally identifying information under our control. When you login into our platform, we encrypt the transmission of that information using secure socket layer technology (SSL). We follow generally accepted standards to protect information submitted to us, both during transmission and once we receive it. Unfortunately, there is no such thing as perfect security. As a result, although we strive to protect personally identifying information, we cannot ensure or warrant the security of any information transmitted to us through or in connection with our website, the oneilCloud platform, or that we store on our systems or that is stored on our service providers’ systems.
Technologies such as: cookies, beacons, tags and scripts are used by O'Neil and our partners (e.g. marketing partners), affiliates, or analytics or service providers (e.g. Google Analytics etc]. These technologies are used in analyzing trends, administering the site, tracking users’ movements around the site and to gather demographic information about our user base as a whole. We may receive reports based on the use of these technologies by these companies on an individual as well as aggregated basis.
As is true of most web sites, we gather certain information automatically and store it in log files. This information includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and clickstream data. We do not link this automatically collected data to other information we collect about you. Any information via tracking technologies is used to improve the services we offer you, to improve marketing, analytics, or site functionality.
We partner with a third party to either display advertising on our Web site, or, to manage our advertising on other sites. Our third party partner may use technologies such as cookies to gather information about your activities on this site and other sides in order to provide you advertising based upon your browsing activities and interests. If you wish to not have this information used for the purpose of service you interest-based ad, you may opt-out by clicking http://preferences-mgr.truste.com/ (or if located in the European Union click http://www.youronlinechoices.eu/ ). Please note this does not opt you out of being served ads. You will continue to receive generic ads.
We will retain your information for as long as your account is active or as needed to provide you services. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
Social Media Features and Widgets
Links to Other Web Sites
O’Neil and its affiliates are not structured to attract children. Accordingly, we do not intend to collect Personal Information from anyone we know to be under 13 years of age.
We are committed to privacy and as protecting your privacy online is an evolving area; O’Neil’s Web sites are constantly evolving to meet these demands.
At O’Neil we are dedicated to conducting our business in a manner that complies with the EU Safe Harbor Principles published by the U.S. Department of Commerce. The Safe Harbor Principles were developed to aid U.S. businesses in addressing and assessing their privacy policies and practices as they may relate to the European Union’s Directive 95/46/EC on data privacy for “personal data” (including any EU member state’s rules, regulations or laws enabling such Directive, herein the “Directive”). Personal data is information relating to an identified or identifiable natural person. It includes personal information specifying medical or health conditions, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union memberships and information concerning the personal activities, undertakings, traits or habits of a particular individual. An identifiable person is one who can be identified, directly or indirectly, by reference to an identification number or to one or more factors specific to the person’s physical, physiological, mental, economic, cultural or social identity. Personal data may be considered transferred outside the EU under the Directive if it falls under one of two situations that are described below. For the Directive to apply, the personal data must be processed, wholly or partly, by automatic means or if not processed to any extent by automatic means, it forms (or is intended to form) part of a filing system.
Processor on Behalf
O’Neil provides cloud based web services, which includes the storage of data, in an online repository known as the oneilCloud. These services are designed to help companies manage their off-site records stored at commercial record centers utilizing O’Neil Software Inc’s RS-SQL® software. O’Neil provides this cloud based service though its’ customers comprising a large geographic coverage of more than 80 countries worldwide. We collect information under the direction of our clients, and we have no direct relationship with the data we process. If you are a customer of one of our Clients and would no longer like to be contacted by one of our clients that use our service, please contact the client that you interact with directly. O’Neil does not own or control any of the information stored or processed by any customer, including by or on behalf of any customer’s client(s). Only our customers and their clients are entitled to process, store, access, and retrieve such information. O’Neil has no direct relationship with the individuals whose personal data it processes. An individual who seeks access, who seeks to correct, amend, delete inaccurate data or withdraw consent to further contact should direct his/her query to the O’Neil Client (the data controller). If the Client requests O’Neil to remove the data, we will respond to their request within 30 days.
O’Neil will retain personal data we process on behalf of our Clients for as long as needed to provide services to our Client. O’Neil will retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
Through careful analysis of specific business requirements, O’Neil’s customers may recommend that their clients are better served by utilizing the oneilCloud web services. O’Neil customers recommending this service to their clients must clearly explain that the client(s) information that originates in the EU will be stored on an Amazon server located in the U.S. and which is accessible over the Internet only by our customer or our customer’s client(s).
O’Neil does not own or otherwise disclose or make available to third parties the data that is stored through use of its oneilCloud web service by our customers or our customer’s client(s), and such data is considered owned or controlled only by that customer’s client(s) or our customer, including if acting on behalf of the customer or the customer’s client. O’Neil does not actively process the data stored on its server under the oneilCloud web service. Furthermore, under no circumstances may O’Neil independently cause our customer’s data or our customer’s client(s) data to be transferred to any third party, such action being limited to either our customer or our customer’s client(s). Also, O’Neil’s standard operating policy in this case is not to directly cause a transfer of any such data other than to return it to the applicable customer. In this capacity, O’Neil should be considered only as a processor in behalf as to any personal data that may be considered transferred from the EU to the U.S. subject to the requirements of the Directive. As such, either our customer or, more particularly, our customer’s client(s) is (are) the Data Controller as they or one of them have the actual control over the way any personal data is collected and used as well as the determination of the purposes and means of the processing of such data. O’Neil is not responsible for the content of the information stored on its server by our customers or our customer’s client(s) nor is O’Neil responsible for the way our customers or our customer’s client(s) treat such information.
The Safe Harbor Principles require that those who collect and determine the purposes and the means of the processing of personal data to fulfill very specific requirements related to compliance with the Directive. The specific functions of a Data Controller will depend on the specific laws of each EU member state. However, since O’Neil is not the collector or in control of any personal data, because it, neither alone nor jointly with others, will determine the purposes and means of collecting and the processing and uses of such data, it should not be considered as acting in the capacity of Data Controller with attendant responsibilities under the Directive or the Safe Harbor Principles. Although O’Neil, without its actual knowledge, may be provided data or information subject to the Directive by customers by means other than use of the oneilCloud web services in order to aid in the resolution of a technical issue, it should not be considered a data collector or Data Controller as to such data. Furthermore, O’Neil strongly recommends that our customers and our customer’s clients(s) do not include personal data in such transmittal to it, and it may reject and return such data to the sender if it becomes aware that such data is not in compliance with such requirement.
Web Services License Agreement
O’Neil and our customers enter into a contract with regards to the oneilCloud web service and this includes that each party understands its role in complying with the Directive and the Safe Harbor Principles. Any data considered processed or stored by O’Neil on behalf of our customer or any customer’s client(s) will not be further disclosed to third parties, except as directed or required by our customer or customer’s client(s), each acting only in compliance with the Directive. If in the unlikely event, any information which is identified as sensitive personal information must be treated accordingly.
The contract with our customer also will specify that our customer is responsible for implementing and maintaining reasonable security measures relating to our customer or customer’s client(s) access to the data stored within the O’Neil oneilCloud, including assignment and administration of all identification codes and passwords authorizing such access. Our customer or our customer’s client(s), as applicable, is responsible for all security measures relating to such identification codes and passwords. O’Neil has in place commercially reasonable measures to protect data on its network from loss, misuse, unauthorized access, disclosure and alteration and destruction.
As merely a processor on behalf of our customer or our customer’s client(s) (who is considered the EU Data Controller), O’Neil is not required to apply other Safe Harbor Principles to personal information subject to the Directive and considered received for processing (i.e., storage) from our customers or customer’s client(s).
O’Neil requests that our customers comply with their respective obligations under the Directive and our customers understand that O’Neil recommends that any data being managed under our oneilCloud is non-confidential, nor do we recommend the use of our web services for the management of Personal Information.
O’Neil is entirely dependent on our customer’s compliance with the Directive in connection with any authorization for access to such customer’s or customer’s client(s) data in the oneilCloud as well as its nature and content. O’Neil has no requirement to access data located on its oneilCloud other than as expressly permitted or directed by our customers and, in no case, will O’Neil be involved in the further processing or manipulation of such data. O’Neil takes reasonable steps to assure that any data that is considered transferred from the EU to the U.S. is maintained in a reliable, accurate and complete state, subject always to any deficiencies in the state in which it was received that may have been caused by others. The steps O’Neil undertakes to assure data integrity is provided to take into consideration the Safe Harbor Principles.
As noted above, the control of access to data stored on the oneilCloud web services is under the direct and primary control of and subject to the security measures undertaken by the O’Neil customer base. O’Neil has made provisions that all data “at rest” and stored in the oneilCloud system is encrypted to better assure the protection and confidentiality of such data. O’Neil has in place security procedures and commercially reasonable security measures to protect all information stored on the utilized servers from loss, misuse, unauthorized access, dis1closure, alteration and destruction.
O’Neil’s customers will be notified of any breach of the security measures implemented by O’Neil that O’Neil becomes aware of, and our customer is responsible for notifying our customer’s customer(s) of such breach. Any measures or actions required to be undertaken by our customers or customer’s client(s) in connection with such breach are solely the responsibility of our customers, as applicable. If O’Neil receives a request to download data stored in the oneilCloud by our customer onto archival media, O’Neil will do so only upon receipt of a written request and directions (including by email) therefore from the requesting customer, as applicable, and such media will be sent via a reliable carrier or courier, as authorized by the customer. Upon its delivery to such carrier or courier, O’Neil shall have no further obligation thereafter for the security or safety of the data included on such media.
Any compromise of security or potential compromise of security and any inquiries concerning security should be reported or directed to O’Neil. Contact information is provided below.
oneilCloud VP of Marketing
O’Neil Software Inc.
11 Cushing, Suite 100
Irvine, CA 92618-4220
Federal Trade Commission
Attn: Consumer Response Center
600 Pennsylvania Avenue NW
Washington, D.C. 20580
Limitation on Application of the Safe Harbor Principles
O’Neil’s adherence to the Safe Harbor Principles may be limited to the extent expressly permitted by applicable law, rule or regulation.
V.4.0 – February 19, 2015
In the complex world of records management, the ability to seamlessly manage both onsite and off-site records has become essential. Commercial record centers recognized this and introduced web-portals, allowing their clients access to view, update and even order services online. This was a great improvement on the traditional phone, fax or email solutions, but it still required retraining of clients staff on how to access the web-portal. If only the off-site records and services could be accessed directly from their file-room software.
oneilBridgeTM leverages the power of Web Services specifically designed for the integration of file room software products and commercial record centers utlizing O'Neil Software's RS-SQL(R) . With oneilBridgeTM, the seamless ability to merge these two disparate worlds now exists. All of the functionality expected in the web-portal of a commercial record center can now be included in your software offering, with the ability to add additional business rules, creating a unique value-add proposition to your clients.
O'Neil DataTech, LLC.
The Cloud has been an area of development for O’Neil DataTech during the past year and is an internet-based service framework to allow for enhanced services to be developed.
One example of this would be for easier integration and collaboration of 3rd party products for the purpose of enhancing overall record management activities. What that means is that we can begin to leverage the oneilCloud so that products, such as Active File Management software, can link seamlessly to O'Neil Software's RS-SQL® software.
This was developed first because many O’Neil partners have asked us to help with integrations to their clients’ software packages. In some cases, these software packages have developed file sharing workarounds that are difficult to manage and maintain. The oneilCloud creates a seamless, end user oriented, internet-based framework to allow us to do that.
This first oneilCloud service has been named oneilBridge™.