OpenSpace Terms and Conditions
November 1, 2024 | Previous Versions
PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY OPEN SPACE LABS, INC. (TOGETHER WITH ITS AFFILIATES, “OPENSPACE”). BY MUTUALLY SIGNING WITH OPENSPACE ONE OR MORE ORDER DOCUMENTS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH EACH ORDER FORM, AN “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND AN ORDER FORM TOGETHER CREATE AN OFFER, ACCEPTANCE OF THE OFFER IS EXPRESSLY LIMITED TO THESE TERMS.
IF YOU ARE ENTERING INTO AN AGREEMENT WITH OPENSPACE ON BEHALF OF AN ENTITY, THEN YOU MUST BE AN EMPLOYEE, CONTRACTOR, OR AGENT OF THAT ENTITY AND AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THESE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
At times, OpenSpace may modify these Terms. Unless otherwise specified by OpenSpace, changes become effective for Customer upon renewal of the then-current Order Form Period (as defined below) or on the effective date of a new Order Form after the modified Terms go into effect.
1. Services
1.1 Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions specified on the applicable Order Form) OpenSpace shall provide Customer with (a) access to OpenSpace’s software-as-a-services platform (collectively, “Platform”), (b) standard implementation assistance (“Implementation Assistance”) and (c) other applicable professional services (“Professional Services”), in each case of (a)-(c) as specified in an applicable Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the business purposes of Customer.
1.2 Customer’s Affiliates may purchase Services from OpenSpace by executing an Order Form that is governed by these Terms. This will establish a new and separate agreement between the Customer’s Affiliate and the OpenSpace entity signing such Order Form. “Affiliate” means (a) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (b) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (c) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.3 At times, OpenSpace may at its discretion provide upgrades, patches, enhancements, or fixes for the Platform to its customers generally without additional charge (“Updates”). OpenSpace shall provide Customer with any Updates released to other customers, and the Updates will become part of the Services under this Agreement. OpenSpace may cease supporting old versions or releases of the Services at any time in its sole discretion but shall use commercially reasonable efforts to give Customer thirty (30) days’ notice before any major reduction of functionalities.
1.4 Third-party Offering. OpenSpace and the Service may provide links or other access to services, sites, technology, equipment, products and resources provided or otherwise made available by third parties (“Third-Party Offering”). Customer’s access and use of the Third-Party Offering may also be subject to additional terms and conditions, privacy policies, or other agreements with the third party, and Customer may be required to authenticate to or create separate accounts to use Third-Party Offering on the websites or via the technology platforms of the third parties. Some Third-Party Offerings will provide OpenSpace with access to certain information that Customer has provided to third parties, including through such Third-Party Offering, and OpenSpace shall use, store, and disclose such information according to these Terms. For clarification, Third-Party Offering are not part of the Services, and the third-party providers are not subcontractors of the Service or OpenSpace. OpenSpace has no control over and is not responsible for such Third-Party Offering, such as its functionality, merchantability, fitness for any particular purpose, title, accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Offering, or on the privacy practices of Third-Party Offering. Customer, not OpenSpace, is responsible for all costs and charges associated with Customer’s use of any Third-Party Offering. OpenSpace enables these connections and access to Third-Party Offering merely as a convenience to Customer, and the integration or inclusion of such Third-Party Offering does not imply an endorsement or recommendation. Any dealing Customer has with third parties while using the Service is between Customer and the third party. OpenSpace will not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by using or relying on any Third-Party Offering.
2. Equipment
2.1 Customer is responsible for obtaining all equipment (e.g., cameras and accessories) necessary to use the Services as described in OpenSpace’s then-current official user documentation located at https://support.openspace.ai, as updated at times (“Documentation”).
2.2 This paragraph applies only if Customer purchases equipment directly from OpenSpace (“Equipment”). OpenSpace shall provide Customer with the quantities of Equipment specified in the Order Form. Equipment purchases are binding and non-cancelable. Fees for Equipment shall be invoiced upfront and are due thirty (30) days after the date of invoice. OpenSpace warrants that all Equipment is in new and unused condition at the time of delivery. Equipment manufactured by third parties (e.g., cameras) is under warranties by their respective manufacturers, and OpenSpace hereby assigns and transfers to Customer all rights to such manufacturers’ warranties.
3. Fees; Payment
3.1 Customer shall pay OpenSpace the fees specified in each Order Form (“Fees”). Unless specified otherwise in an Order Form, all Fees will be invoiced annually in advance, and all invoices issued are due thirty (30) days after the date of invoice. Customer shall be responsible for all sales and similar taxes (e.g., value-added taxes (VAT) and goods and services taxes (GST)) related to the Services, excluding taxes based on OpenSpace’s net income. Unless otherwise specified in an Order Form, all renewals and excess usage above prepaid allowances will be billed at then-current rates. Except if Customer terminates the Agreement for OpenSpace’s material breach, all Fees paid are non-refundable and are not subject to set-off.
3.2. If Customer submits a purchase order to OpenSpace after entering into an Order Form, then Customer acknowledges: (a) any such purchase order is for Customer’s internal purposes only, and OpenSpace rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict with these Terms or the applicable Order Form, and such additional or conflicting terms have no effect, even if OpenSpace signs the purchase order solely for Customer’s administrative convenience; (b) the purchase order does not affect OpenSpace’s right to collect Fees; and (c) if Customer wishes to include the purchase order number in an invoice, Customer is responsible for providing the purchase order number sufficiently before the invoice is issued.
3.3. Reseller Orders. This paragraph applies only if Customer procures Services and Equipment through an OpenSpace-authorized distributor, referral partner, or reseller selling Services and Equipment (“Reseller”) under a separate agreement between Customer and Reseller, which may specify different terms than these Terms regarding invoicing, taxes, and payments (“Reseller Arrangement”). OpenSpace will provide the Services and Equipment to Customer regarding a Reseller Arrangement only if OpenSpace and Reseller have executed an Order Form for such purchase. Customer acknowledges and agrees that, solely regarding the purchase by Customer through a Reseller Arrangement: (a) OpenSpace may share information with Reseller related to Customer’s use of the Services; (b) notwithstanding anything to contrary in these Terms, references to “Customer” in each of the defined terms “Fees” and “Order Form” in this Agreement shall be replaced with “Reseller,” and all payments of fees, refunds and credits, if any, are payable by or to the Reseller; (c) these Terms govern Customer’s use of the Services, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) Reseller is not authorized to make any changes to these Terms or otherwise authorized to make any warranties, representations, promises or commitments on behalf of OpenSpace or in any way concerning the Services and Equipment.
4. Service Warranty & Service Levels
OpenSpace warrants to Customer the following:
4.1 OpenSpace will provide support and uptime for the Service in accordance with OpenSpace’s then-current standard Support and Availability Policy specified at https://www.openspace.ai/sla/, as updated at times;
4.2 The Implementation Assistance, Professional Services and support services will be performed in a professional and workmanlike manner and consistent with industry standards;
4.3 The Platform will function substantially in accordance with OpenSpace’s Documentation;
4.4 The Platform contains no software or code that is (a) a virus or similar harmful code intended to disrupt or damage Customer’s equipment, system or use of the Platform in accordance with the Agreement; or (b) under “copyleft” or “viral” license terms that impose any legal requirement to out-license or disclose any Customer Data, Platform Output or Customer’s Proprietary Information.
4.5 OpenSpace has and will maintain the full power and authority to grant Customer the right to use the Platform.
4.6 To protect the security, availability, processing integrity, confidentiality, and privacy of Customer Data (as defined below), OpenSpace shall comply with the information security management system outlined in Section 6.5 in all material aspects, including any commitment therein to notify Customers whose Customer Data is compromised in any confirmed security incident without undue delay.
4.7 If OpenSpace delegates to any subcontractor any part of the Services, the delegated portion of Services shall comply with the same requirements specified in this Section 4, and OpenSpace shall be directly liable to Customer for its subcontractors’ acts and omissions.
5. Using the Services
5.1 “Authorized Users” means any of Customer’s Affiliates, clients, customers or other third parties that Customer gives access to the Platform in connection with Customer’s use of the Platform or that otherwise use the Platform on Customer’s behalf, including without limitation such entities’ agents and employees, but in each case excluding any “Prohibited Party” i.e., a third party (including its employees and agents) whose primary business is offering software or related service that is substantially similar to, substitute of, or competitive with the Platform. Customer may authorize any number of individual users from Customer or Authorized Users to access and use the Platform. Customer shall not make representations or warranties regarding the Services on behalf of OpenSpace or create any obligations or liabilities for OpenSpace. Customer is responsible for Authorized Users’ activities, such as uploading Customer Data to the Platform. Customer shall be directly liable to OpenSpace for Authorized Users’ compliance with these Terms.
5.2 Customer (a) shall use the Services in compliance with all laws and regulations applicable to Customer’s use of the Service (including those related to data privacy, international communications, and the transmission of technical or personal data), and (b) shall not use the Service in any way that violates any third-party intellectual property, contractual or other proprietary rights.
5.3 Customer shall not, and shall not permit any Authorized User to: (a) sell, rent, lease, license, or otherwise monetize the Service as a standalone offering or in a service bureau; (b) use the Service to provide substantially similar software or service, or incorporate, copy or imitate any Service feature into such software or service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to OpenSpace); (d) remove or obscure any proprietary or other notices contained in the Service; or (e) provide any Prohibited Party with access to the Platform.
6. Confidentiality; Privacy; Security
6.1 Each party (the “Receiver”) understands that the other party (the “Discloser”) has disclosed or may disclose information relating to the Discloser’s technology or business (“Proprietary Information” of the Discloser).
6.2 Receiver shall: (a) not divulge to any third person any such Proprietary Information, (b) give access to such Proprietary Information solely to its personnel who needs to have access for purposes of this Agreement, and (c) take the same (but at a minimum reasonable) security precautions to protect against unauthorized disclosure or use of such Proprietary Information that Receiver takes with its own proprietary information.
6.3 The foregoing does not apply to any information that Receiver can document (a) is or becomes generally available to the public without any action by, or involvement of, Receiver or (b) was in its possession or known by it before receipt from Discloser, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Discloser. Receiver may disclose Proprietary Information to compliance with any judicial or governmental order, but only if Receiver gives the Discloser reasonable prior notice of such disclosure and reasonably assists Discloser to contest such order.
6.4 OpenSpace shall comply with all privacy and personal data protection laws that apply to OpenSpace, Customer and its users and shall only use Customer or its users’ personal data and personally identifiable information in accordance with the privacy and personal data protection laws and the terms of this Agreement. If OpenSpace and Customer have any separate agreement regarding processing Customer or its Authorized Users’ personal data and personally identifiable information, this Agreement does not modify such data processing agreement.
6.5 OpenSpace shall engage independent third-party auditors to assess the information security management system used to provide the Services under the SOC 2 Type II framework (“Third-Party Audit”), on at least an annual basis, and shall make the report of such Third-Party Audit available to Customer upon request. The Third-Party Audit reports are Proprietary Information of OpenSpace. If OpenSpace decides to discontinue a Third-Party Audit, OpenSpace shall adopt or maintain an equivalent, industry-recognized framework.
6.6 OpenSpace shall maintain one or more of the following cybersecurity certifications: (a) IASME Cyber Essentials; (b) CSA-STAR Level 1 or 2.
7. Customer Data; Platform Output
7.1 “Customer Data” means all images, information or other data of any type provided, uploaded, or submitted by or on behalf of Customer to the Platform. As between the parties, Customer owns all rights, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not OpenSpace, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. OpenSpace shall maintain the security and integrity of the Platform and the Customer Data.
7.2 “Platform Output” means any output data derived from Customer Data and made available to Customer or its Users through the Platform. As between the parties, Customer owns all rights, title and interest in and to the Platform Output, including all intellectual property rights therein. Upon termination of an Order Form, Customer may request a downloadable copy of the Platform Output by writing to OpenSpace’s customer support team.
7.3 Notwithstanding anything to the contrary, Customer acknowledges and agrees that: (a) OpenSpace may internally use and modify (but not disclose) Customer Data to provide and improve the Services; (b) OpenSpace may generate and retain derived data and analytics based on Customer Data and use of the Platform, and use such derived data and analytics for OpenSpace’s business activities; and (c) OpenSpace’s business activities may include, without limitation, training artificial intelligence models to develop, improve and commercialize models, algorithms, tools and related artificial intelligence products and features.
8. OpenSpace Technology; Feedback
8.1 As between the parties, OpenSpace retains all right, title, and interest in and to the Platform and all software, analytics, works, and other intellectual property and moral rights related thereto or created, used, or provided by OpenSpace, including any modification, improvement and derivative works of the foregoing (“OpenSpace Technology”). The Platform and to the extent made available by OpenSpace, any software is licensed only during the applicable Order Form Period solely for use by Customer and its Authorized Users. Such license is subject to the prohibitions specified in Section 5.2 above and does not include any right to incorporate or use in any other works, create derivatives of, or copy any portion of the Platform software. Customer acknowledges that the Services may include features to prevent use after the applicable authorized usage period and/or use inconsistent with this Agreement. No rights or licenses are granted by OpenSpace except as expressly and unambiguously specified in these Terms.
8.2 Customer may at times voluntarily provide suggestions, comments or other feedback to OpenSpace regarding the Service (“Feedback”). Feedback shall not create any confidentiality obligation for OpenSpace, and Customer grants OpenSpace permission to use the Feedback for OpenSpace’s business purposes without any further obligation.
9. Term; Termination
9.1 Unless terminated earlier according to this section 9, this Agreement shall be in effect until all Order Form Periods expire. The “Order Form Period” of an Order Form shall begin as of the contract start date specified on the Order Form, and unless earlier terminated as specified herein, (a) shall continue for the term specified on the Order Form (the “Initial Order Form Period”), and (b) following the Initial Order Form Period, shall automatically renew for additional successive one-year periods (each, a “Renewal Order Form Period”) unless either party declines to renew the Order Form by written notice to the other party at least thirty (30) days before the expiration of the Initial Order Form Period or then-current Renewal Order Form Period, as applicable.
9.2 If a material breach of this Agreement occurs, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.
9.3 If Customer becomes insolvent, files (or is subject to) any bankruptcy or similar proceeding or fails to make any payment under this Agreement when due, OpenSpace may (if permitted under applicable laws) suspend the Services.
9.4 All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Indemnification
10.1 Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any third-party claim that (a) the Customer Data (if Customer is Indemnitor), or (b) the OpenSpace Technology (if OpenSpace is Indemnitor), infringes, violates, or misappropriates any third-party intellectual property or proprietary right.
10.2 Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance for such defense and settlement (at the Indemnitor’s expense). For claims that Customer is obligated to indemnify OpenSpace under Section 10.1, such indemnification is OpenSpace’s sole and exclusive remedy.
10.3 The above obligations of OpenSpace do not apply to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (a) not provided by OpenSpace (for example, any Customer Data), (b) made entirely or partially according to Customer specifications, (c) modified after delivery by OpenSpace, (d) combined with other products, processes or materials not provided by OpenSpace (where the alleged Losses arise from or relate to such combination), (e) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) Customer’s use of the Service is not strictly in accordance herewith.
10.4 If Customer’s use of the Service results (or in OpenSpace’s opinion is likely to result) in an infringement claim, OpenSpace may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate the applicable Order Form, and refund to Customer any prepaid unused Fees for the applicable Service. This section specifies the Customer’s sole and exclusive remedy for any claim of intellectual property infringement.
11. Disclaimer
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICE, EQUIPMENT AND ANYTHING ELSE PROVIDED BY OPENSPACE HEREUNDER IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
12. Limitation of Liability; Insurance
12.1 EXCEPT WHERE PROHIBITED BY APPLICABLE LAWS, OR IN THE EVENT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY REGARDING THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO OPENSPACE HEREUNDER IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
12.2 OpenSpace shall maintain professional liability, technology errors and omissions, and cyber insurance coverage consistent with industry-standard practices and worker’s compensation, unemployment, and other insurance coverage as required by law. Upon request, OpenSpace shall provide Customer with certificates of insurance or evidence of coverage.
13. Compliance with Laws
13.1 OpenSpace warrants that it complies with all US federal, state, and foreign laws having jurisdiction over OpenSpace and that (a) prohibit bribery, forced labor, human trafficking, or employee discrimination based on protected characteristics; and (b) mandate fair labor standards, safe working conditions, equal employment opportunities or prevailing wage rates and benefits.
13.2 OpenSpace warrants that the Platform and Equipment do not contain (a) any “Controlled Subject Matter” as defined under applicable laws or regulations of the U.S. Department of Commerce or the Department of Treasury, Office of Foreign Assets Control, to the best of OpenSpace’s knowledge; or (b) any prohibited telecommunication equipment or services covered under Federal Acquisition Regulation 52.204-24 and 52.204-25, Section 889 (a)(1)(B), Title 2 to the Code of Federal Regulations Section 200.216, and any other implementing regulations of the National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1045 (2018).
13.3 Each party shall comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Service. Without limiting the foregoing, Customer warrants that: (a) it is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) it is not located in a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) it will not (and will not permit any third parties to) access or use the Platform in violation of any U.S. export embargo, prohibition or restriction; and (d) it will not submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations.
14. Miscellaneous
14.1 Unless specified otherwise in a clause, the remedies are cumulative, and exercising one remedy does not preclude other remedies. Delay or failure to exercise any right or remedy does not constitute waiver of a breach. A waiver must be signed by the waiving party and does not waive any other breach.
14.2 The parties are independent contractors, not joint venturers, agents, or partners. There is no third-party beneficiary.
14.3 A party’s transfer of any rights or obligations hereunder without the other party’s prior written permission is void; except that either party may assign all of its rights and obligations hereunder to an Affiliate or to a successor-in-interest in a sale of substantially all of such party’s business or assets relating to this Agreement even without such written permission.
14.4 Notices must be in writing (e-mail is sufficient) and become effective upon receipt. OpenSpace’s notice address is Legal_Notice@openspace.ai. Unless Customer changes its notice address by giving OpenSpace notice according to this clause, Customer’s notice address is its e-mail address specified on the Order Form.
14.5 Upon OpenSpace’s reasonable request, Customer may at its discretion (but is not required to) work with OpenSpace in good faith to develop a customer case study and/or to issue a press release announcing their relationship.
14.6 Unless the Order Form states otherwise, Delaware laws (excluding its conflict of laws rule) govern and interpret this Agreement. The UN Convention on Contracts for the International Sale of Goods does not apply.
14.7 Invalid or unenforceable provisions will be interpreted to fulfill their intended purposes to the extent permitted, without affecting other provisions.
14.8 The above constitutes both parties’ entire agreement regarding the subject matter herein and supersedes any prior oral or written representations, agreements, past dealings or industry custom. Amendments are effective only if signed by both parties and specifically reference the clauses being amended.
Previous versions
2022
November 1, 2024 | Previous Versions
PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY OPEN SPACE LABS, INC. (TOGETHER WITH ITS AFFILIATES, “OPENSPACE”). BY MUTUALLY SIGNING WITH OPENSPACE ONE OR MORE ORDER DOCUMENTS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH EACH ORDER FORM, AN “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND AN ORDER FORM TOGETHER CREATE AN OFFER, ACCEPTANCE OF THE OFFER IS EXPRESSLY LIMITED TO THESE TERMS.
IF YOU ARE ENTERING INTO AN AGREEMENT WITH OPENSPACE ON BEHALF OF AN ENTITY, THEN YOU MUST BE AN EMPLOYEE, CONTRACTOR, OR AGENT OF THAT ENTITY AND AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THESE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
At times, OpenSpace may modify these Terms. Unless otherwise specified by OpenSpace, changes become effective for Customer upon renewal of the then-current Order Form Period (as defined below) or on the effective date of a new Order Form after the modified Terms go into effect.
1. Services
1.1 Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions specified on the applicable Order Form) OpenSpace shall provide Customer with (a) access to OpenSpace’s software-as-a-services platform (collectively, “Platform”), (b) standard implementation assistance (“Implementation Assistance”) and (c) other applicable professional services (“Professional Services”), in each case of (a)-(c) as specified in an applicable Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the business purposes of Customer.
1.2 Customer’s Affiliates may purchase Services from OpenSpace by executing an Order Form that is governed by these Terms. This will establish a new and separate agreement between the Customer’s Affiliate and the OpenSpace entity signing such Order Form. “Affiliate” means (a) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (b) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (c) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.3 At times, OpenSpace may at its discretion provide upgrades, patches, enhancements, or fixes for the Platform to its customers generally without additional charge (“Updates”). OpenSpace shall provide Customer with any Updates released to other customers, and the Updates will become part of the Services under this Agreement. OpenSpace may cease supporting old versions or releases of the Services at any time in its sole discretion but shall use commercially reasonable efforts to give Customer thirty (30) days’ notice before any major reduction of functionalities.
1.4 Third-party Offering. OpenSpace and the Service may provide links or other access to services, sites, technology, equipment, products and resources provided or otherwise made available by third parties (“Third-Party Offering”). Customer’s access and use of the Third-Party Offering may also be subject to additional terms and conditions, privacy policies, or other agreements with the third party, and Customer may be required to authenticate to or create separate accounts to use Third-Party Offering on the websites or via the technology platforms of the third parties. Some Third-Party Offerings will provide OpenSpace with access to certain information that Customer has provided to third parties, including through such Third-Party Offering, and OpenSpace shall use, store, and disclose such information according to these Terms. For clarification, Third-Party Offering are not part of the Services, and the third-party providers are not subcontractors of the Service or OpenSpace. OpenSpace has no control over and is not responsible for such Third-Party Offering, such as its functionality, merchantability, fitness for any particular purpose, title, accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Offering, or on the privacy practices of Third-Party Offering. Customer, not OpenSpace, is responsible for all costs and charges associated with Customer’s use of any Third-Party Offering. OpenSpace enables these connections and access to Third-Party Offering merely as a convenience to Customer, and the integration or inclusion of such Third-Party Offering does not imply an endorsement or recommendation. Any dealing Customer has with third parties while using the Service is between Customer and the third party. OpenSpace will not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by using or relying on any Third-Party Offering.
2. Equipment
2.1 Customer is responsible for obtaining all equipment (e.g., cameras and accessories) necessary to use the Services as described in OpenSpace’s then-current official user documentation located at https://support.openspace.ai, as updated at times (“Documentation”).
2.2 This paragraph applies only if Customer purchases equipment directly from OpenSpace (“Equipment”). OpenSpace shall provide Customer with the quantities of Equipment specified in the Order Form. Equipment purchases are binding and non-cancelable. Fees for Equipment shall be invoiced upfront and are due thirty (30) days after the date of invoice. OpenSpace warrants that all Equipment is in new and unused condition at the time of delivery. Equipment manufactured by third parties (e.g., cameras) is under warranties by their respective manufacturers, and OpenSpace hereby assigns and transfers to Customer all rights to such manufacturers’ warranties.
3. Fees; Payment
3.1 Customer shall pay OpenSpace the fees specified in each Order Form (“Fees”). Unless specified otherwise in an Order Form, all Fees will be invoiced annually in advance, and all invoices issued are due thirty (30) days after the date of invoice. Customer shall be responsible for all sales and similar taxes (e.g., value-added taxes (VAT) and goods and services taxes (GST)) related to the Services, excluding taxes based on OpenSpace’s net income. Unless otherwise specified in an Order Form, all renewals and excess usage above prepaid allowances will be billed at then-current rates. Except if Customer terminates the Agreement for OpenSpace’s material breach, all Fees paid are non-refundable and are not subject to set-off.
3.2. If Customer submits a purchase order to OpenSpace after entering into an Order Form, then Customer acknowledges: (a) any such purchase order is for Customer’s internal purposes only, and OpenSpace rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict with these Terms or the applicable Order Form, and such additional or conflicting terms have no effect, even if OpenSpace signs the purchase order solely for Customer’s administrative convenience; (b) the purchase order does not affect OpenSpace’s right to collect Fees; and (c) if Customer wishes to include the purchase order number in an invoice, Customer is responsible for providing the purchase order number sufficiently before the invoice is issued.
3.3. Reseller Orders. This paragraph applies only if Customer procures Services and Equipment through an OpenSpace-authorized distributor, referral partner, or reseller selling Services and Equipment (“Reseller”) under a separate agreement between Customer and Reseller, which may specify different terms than these Terms regarding invoicing, taxes, and payments (“Reseller Arrangement”). OpenSpace will provide the Services and Equipment to Customer regarding a Reseller Arrangement only if OpenSpace and Reseller have executed an Order Form for such purchase. Customer acknowledges and agrees that, solely regarding the purchase by Customer through a Reseller Arrangement: (a) OpenSpace may share information with Reseller related to Customer’s use of the Services; (b) notwithstanding anything to contrary in these Terms, references to “Customer” in each of the defined terms “Fees” and “Order Form” in this Agreement shall be replaced with “Reseller,” and all payments of fees, refunds and credits, if any, are payable by or to the Reseller; (c) these Terms govern Customer’s use of the Services, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) Reseller is not authorized to make any changes to these Terms or otherwise authorized to make any warranties, representations, promises or commitments on behalf of OpenSpace or in any way concerning the Services and Equipment.
4. Service Warranty & Service Levels
OpenSpace warrants to Customer the following:
4.1 OpenSpace will provide support and uptime for the Service in accordance with OpenSpace’s then-current standard Support and Availability Policy specified at https://www.openspace.ai/sla/, as updated at times;
4.2 The Implementation Assistance, Professional Services and support services will be performed in a professional and workmanlike manner and consistent with industry standards;
4.3 The Platform will function substantially in accordance with OpenSpace’s Documentation;
4.4 The Platform contains no software or code that is (a) a virus or similar harmful code intended to disrupt or damage Customer’s equipment, system or use of the Platform in accordance with the Agreement; or (b) under “copyleft” or “viral” license terms that impose any legal requirement to out-license or disclose any Customer Data, Platform Output or Customer’s Proprietary Information.
4.5 OpenSpace has and will maintain the full power and authority to grant Customer the right to use the Platform.
4.6 To protect the security, availability, processing integrity, confidentiality, and privacy of Customer Data (as defined below), OpenSpace shall comply with the information security management system outlined in Section 6.5 in all material aspects, including any commitment therein to notify Customers whose Customer Data is compromised in any confirmed security incident without undue delay.
4.7 If OpenSpace delegates to any subcontractor any part of the Services, the delegated portion of Services shall comply with the same requirements specified in this Section 4, and OpenSpace shall be directly liable to Customer for its subcontractors’ acts and omissions.
5. Using the Services
5.1 “Authorized Users” means any of Customer’s Affiliates, clients, customers or other third parties that Customer gives access to the Platform in connection with Customer’s use of the Platform or that otherwise use the Platform on Customer’s behalf, including without limitation such entities’ agents and employees, but in each case excluding any “Prohibited Party” i.e., a third party (including its employees and agents) whose primary business is offering software or related service that is substantially similar to, substitute of, or competitive with the Platform. Customer may authorize any number of individual users from Customer or Authorized Users to access and use the Platform. Customer shall not make representations or warranties regarding the Services on behalf of OpenSpace or create any obligations or liabilities for OpenSpace. Customer is responsible for Authorized Users’ activities, such as uploading Customer Data to the Platform. Customer shall be directly liable to OpenSpace for Authorized Users’ compliance with these Terms.
5.2 Customer (a) shall use the Services in compliance with all laws and regulations applicable to Customer’s use of the Service (including those related to data privacy, international communications, and the transmission of technical or personal data), and (b) shall not use the Service in any way that violates any third-party intellectual property, contractual or other proprietary rights.
5.3 Customer shall not, and shall not permit any Authorized User to: (a) sell, rent, lease, license, or otherwise monetize the Service as a standalone offering or in a service bureau; (b) use the Service to provide substantially similar software or service, or incorporate, copy or imitate any Service feature into such software or service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to OpenSpace); (d) remove or obscure any proprietary or other notices contained in the Service; or (e) provide any Prohibited Party with access to the Platform.
6. Confidentiality; Privacy; Security
6.1 Each party (the “Receiver”) understands that the other party (the “Discloser”) has disclosed or may disclose information relating to the Discloser’s technology or business (“Proprietary Information” of the Discloser).
6.2 Receiver shall: (a) not divulge to any third person any such Proprietary Information, (b) give access to such Proprietary Information solely to its personnel who needs to have access for purposes of this Agreement, and (c) take the same (but at a minimum reasonable) security precautions to protect against unauthorized disclosure or use of such Proprietary Information that Receiver takes with its own proprietary information.
6.3 The foregoing does not apply to any information that Receiver can document (a) is or becomes generally available to the public without any action by, or involvement of, Receiver or (b) was in its possession or known by it before receipt from Discloser, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Discloser. Receiver may disclose Proprietary Information to compliance with any judicial or governmental order, but only if Receiver gives the Discloser reasonable prior notice of such disclosure and reasonably assists Discloser to contest such order.
6.4 OpenSpace shall comply with all privacy and personal data protection laws that apply to OpenSpace, Customer and its users and shall only use Customer or its users’ personal data and personally identifiable information in accordance with the privacy and personal data protection laws and the terms of this Agreement. If OpenSpace and Customer have any separate agreement regarding processing Customer or its Authorized Users’ personal data and personally identifiable information, this Agreement does not modify such data processing agreement.
6.5 OpenSpace shall engage independent third-party auditors to assess the information security management system used to provide the Services under the SOC 2 Type II framework (“Third-Party Audit”), on at least an annual basis, and shall make the report of such Third-Party Audit available to Customer upon request. The Third-Party Audit reports are Proprietary Information of OpenSpace. If OpenSpace decides to discontinue a Third-Party Audit, OpenSpace shall adopt or maintain an equivalent, industry-recognized framework.
6.6 OpenSpace shall maintain one or more of the following cybersecurity certifications: (a) IASME Cyber Essentials; (b) CSA-STAR Level 1 or 2.
7. Customer Data; Platform Output
7.1 “Customer Data” means all images, information or other data of any type provided, uploaded, or submitted by or on behalf of Customer to the Platform. As between the parties, Customer owns all rights, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not OpenSpace, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. OpenSpace shall maintain the security and integrity of the Platform and the Customer Data.
7.2 “Platform Output” means any output data derived from Customer Data and made available to Customer or its Users through the Platform. As between the parties, Customer owns all rights, title and interest in and to the Platform Output, including all intellectual property rights therein. Upon termination of an Order Form, Customer may request a downloadable copy of the Platform Output by writing to OpenSpace’s customer support team.
7.3 Notwithstanding anything to the contrary, Customer acknowledges and agrees that: (a) OpenSpace may internally use and modify (but not disclose) Customer Data to provide and improve the Services; (b) OpenSpace may generate and retain derived data and analytics based on Customer Data and use of the Platform, and use such derived data and analytics for OpenSpace’s business activities; and (c) OpenSpace’s business activities may include, without limitation, training artificial intelligence models to develop, improve and commercialize models, algorithms, tools and related artificial intelligence products and features.
8. OpenSpace Technology; Feedback
8.1 As between the parties, OpenSpace retains all right, title, and interest in and to the Platform and all software, analytics, works, and other intellectual property and moral rights related thereto or created, used, or provided by OpenSpace, including any modification, improvement and derivative works of the foregoing (“OpenSpace Technology”). The Platform and to the extent made available by OpenSpace, any software is licensed only during the applicable Order Form Period solely for use by Customer and its Authorized Users. Such license is subject to the prohibitions specified in Section 5.2 above and does not include any right to incorporate or use in any other works, create derivatives of, or copy any portion of the Platform software. Customer acknowledges that the Services may include features to prevent use after the applicable authorized usage period and/or use inconsistent with this Agreement. No rights or licenses are granted by OpenSpace except as expressly and unambiguously specified in these Terms.
8.2 Customer may at times voluntarily provide suggestions, comments or other feedback to OpenSpace regarding the Service (“Feedback”). Feedback shall not create any confidentiality obligation for OpenSpace, and Customer grants OpenSpace permission to use the Feedback for OpenSpace’s business purposes without any further obligation.
9. Term; Termination
9.1 Unless terminated earlier according to this section 9, this Agreement shall be in effect until all Order Form Periods expire. The “Order Form Period” of an Order Form shall begin as of the contract start date specified on the Order Form, and unless earlier terminated as specified herein, (a) shall continue for the term specified on the Order Form (the “Initial Order Form Period”), and (b) following the Initial Order Form Period, shall automatically renew for additional successive one-year periods (each, a “Renewal Order Form Period”) unless either party declines to renew the Order Form by written notice to the other party at least thirty (30) days before the expiration of the Initial Order Form Period or then-current Renewal Order Form Period, as applicable.
9.2 If a material breach of this Agreement occurs, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.
9.3 If Customer becomes insolvent, files (or is subject to) any bankruptcy or similar proceeding or fails to make any payment under this Agreement when due, OpenSpace may (if permitted under applicable laws) suspend the Services.
9.4 All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Indemnification
10.1 Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any third-party claim that (a) the Customer Data (if Customer is Indemnitor), or (b) the OpenSpace Technology (if OpenSpace is Indemnitor), infringes, violates, or misappropriates any third-party intellectual property or proprietary right.
10.2 Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance for such defense and settlement (at the Indemnitor’s expense). For claims that Customer is obligated to indemnify OpenSpace under Section 10.1, such indemnification is OpenSpace’s sole and exclusive remedy.
10.3 The above obligations of OpenSpace do not apply to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (a) not provided by OpenSpace (for example, any Customer Data), (b) made entirely or partially according to Customer specifications, (c) modified after delivery by OpenSpace, (d) combined with other products, processes or materials not provided by OpenSpace (where the alleged Losses arise from or relate to such combination), (e) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) Customer’s use of the Service is not strictly in accordance herewith.
10.4 If Customer’s use of the Service results (or in OpenSpace’s opinion is likely to result) in an infringement claim, OpenSpace may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate the applicable Order Form, and refund to Customer any prepaid unused Fees for the applicable Service. This section specifies the Customer’s sole and exclusive remedy for any claim of intellectual property infringement.
11. Disclaimer
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICE, EQUIPMENT AND ANYTHING ELSE PROVIDED BY OPENSPACE HEREUNDER IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
12. Limitation of Liability; Insurance
12.1 EXCEPT WHERE PROHIBITED BY APPLICABLE LAWS, OR IN THE EVENT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY REGARDING THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO OPENSPACE HEREUNDER IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
12.2 OpenSpace shall maintain professional liability, technology errors and omissions, and cyber insurance coverage consistent with industry-standard practices and worker’s compensation, unemployment, and other insurance coverage as required by law. Upon request, OpenSpace shall provide Customer with certificates of insurance or evidence of coverage.
13. Compliance with Laws
13.1 OpenSpace warrants that it complies with all US federal, state, and foreign laws having jurisdiction over OpenSpace and that (a) prohibit bribery, forced labor, human trafficking, or employee discrimination based on protected characteristics; and (b) mandate fair labor standards, safe working conditions, equal employment opportunities or prevailing wage rates and benefits.
13.2 OpenSpace warrants that the Platform and Equipment do not contain (a) any “Controlled Subject Matter” as defined under applicable laws or regulations of the U.S. Department of Commerce or the Department of Treasury, Office of Foreign Assets Control, to the best of OpenSpace’s knowledge; or (b) any prohibited telecommunication equipment or services covered under Federal Acquisition Regulation 52.204-24 and 52.204-25, Section 889 (a)(1)(B), Title 2 to the Code of Federal Regulations Section 200.216, and any other implementing regulations of the National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1045 (2018).
13.3 Each party shall comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Service. Without limiting the foregoing, Customer warrants that: (a) it is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) it is not located in a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) it will not (and will not permit any third parties to) access or use the Platform in violation of any U.S. export embargo, prohibition or restriction; and (d) it will not submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations.
14. Miscellaneous
14.1 Unless specified otherwise in a clause, the remedies are cumulative, and exercising one remedy does not preclude other remedies. Delay or failure to exercise any right or remedy does not constitute waiver of a breach. A waiver must be signed by the waiving party and does not waive any other breach.
14.2 The parties are independent contractors, not joint venturers, agents, or partners. There is no third-party beneficiary.
14.3 A party’s transfer of any rights or obligations hereunder without the other party’s prior written permission is void; except that either party may assign all of its rights and obligations hereunder to an Affiliate or to a successor-in-interest in a sale of substantially all of such party’s business or assets relating to this Agreement even without such written permission.
14.4 Notices must be in writing (e-mail is sufficient) and become effective upon receipt. OpenSpace’s notice address is Legal_Notice@openspace.ai. Unless Customer changes its notice address by giving OpenSpace notice according to this clause, Customer’s notice address is its e-mail address specified on the Order Form.
14.5 Upon OpenSpace’s reasonable request, Customer may at its discretion (but is not required to) work with OpenSpace in good faith to develop a customer case study and/or to issue a press release announcing their relationship.
14.6 Unless the Order Form states otherwise, Delaware laws (excluding its conflict of laws rule) govern and interpret this Agreement. The UN Convention on Contracts for the International Sale of Goods does not apply.
14.7 Invalid or unenforceable provisions will be interpreted to fulfill their intended purposes to the extent permitted, without affecting other provisions.
14.8 The above constitutes both parties’ entire agreement regarding the subject matter herein and supersedes any prior oral or written representations, agreements, past dealings or industry custom. Amendments are effective only if signed by both parties and specifically reference the clauses being amended.