OpenApp, Terms of service

This is a legal agreement between the person or organization (“Customer” or “you”) agreeing to these Terms of Service (“Terms”) and Open Cosmos Limited (“Open Cosmos”, “us”, or “we”). By accepting these Terms or using the Services, you represent that you are of legal age and have the authority to bind the Customer to these Terms and any descriptions of the OpenApp platform we may make available to you from time to time (referred to as the “Agreement”). We reserve the right not to provide access to our Services, add additional conditions to your use of our Services, and to terminate or suspend access to our Services, at any time for any reason. We may review your request to use the Services before granting you access.

1.1. Right to Use Services. You agree to use the Services in accordance with any reasonable use levels we may notify to you from time to time, including via our website (“Use Levels”). You may use our Services only as permitted in these Terms. We grant you a limited right to use our Services only for academic research, business and professional purposes. Technical support for the Services is provided by us at our discretion. “Service(s)” means our OpenApp software-as-a-service offering. You understand that your personal data may be processed in connection with your use of our Services, software, and websites which are provided via equipment and resources located throughout the world. You agree to obtain the necessary permissions and consents from any person whose personal data you provide to us at any time, including in connection with your use of the Services. You acknowledge that other users of our Services may be able to access any personal data you provide in connection with your use of the Services. You remain liable for any use of the Services in conjunction with any hardware not provided by Open Cosmos, or any use of the Services otherwise than in accordance with the written instructions of Open Cosmos.

1.2. Limitations on Use. By using our Services, you agree on behalf of yourself and your users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) knowingly or negligently use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, fraudulent, or unlawful material; (iv) market, or resell the Services to any third party; (v) use the Services in violation of applicable laws, or regulations; (vi) use the Services to send unauthorized advertising, or spam; (vii) harvest, collect, or gather user data without their consent; (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; (ix) use the Services to interface with hardware, software or firmware other than those provided to you by Open Cosmos; or (x) collect or harvest any information or data from the Services or any Open Cosmos systems or attempt to decipher any transmissions to or from the servers running the Services.

1.3. Changes to Services. We reserve the right to remove, add, enhance, upgrade, improve, or modify features of our Services as we deem appropriate and in our discretion. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.

1.4. Proprietary Rights. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, our name, logo or other marks (together, the “Open Cosmos Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trade mark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Open Cosmos Marks or is similar to any of these.

2.1. Fees and Payment. Our Services are provided to you for an initial period without charge, but we reserve the right to impose charges for the use of our Services at any time.  You agree to pay all applicable, undisputed fees for the Services on the terms set forth on any invoice we may issue to you. Any and all payments you make to us for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by your voice and data transmission providers related to your access and use of the Services. You agree that we may take steps to verify whether your payment method is valid, charge your payment card or bill you for all amounts due for your use of the Services, and automatically update your payment card information using software designed to do so in the event your payment card on file is no longer valid. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services at any time, and price changes will be effective as of your next billing cycle. We will notify you of any price changes by publishing on our website, emailing, quoting or invoicing you.

2.2. Taxes and Withholding. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar fees as may be applicable in the location in which the Services are being provided and similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those Taxes and Fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. Additionally, if you do not satisfy your Tax and Fees obligations, you agree that you will be required to reimburse us for any Taxes and Fees paid on your behalf, and we may take steps to collect Taxes and Fees we have paid on your behalf. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.

3.1. Term. The initial term commitment for your purchase of Services will be as specified on any invoice we send to you (“Initial Term”) and begins on the Effective Date. After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires.

3.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, and we may suspend access or terminate immediately if you breach Section 1.2, 4 or 5.

3.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that upon request, we will provide you with limited access to the Services for a period not to exceed 30 days, solely to enable you to retrieve your Content from the Services. We have no obligation to maintain your Content after that period. Neither party will be liable for any damages resulting from termination of the Agreement, and termination will not affect any claim arising prior to the effective termination date.

3.4. Survival. The provisions of Sections 2 (Fees and Payment), 3.3 (Effect of Termination), 4 (Your Content and Accounts), 7 (Indemnification), 8 (Limitation on Liability), 9.4 (No Class Actions), 9.7 (Notices), and 9.10 (Choice of Law and Location for Resolving Disputes) survive any termination of the Agreement.

4.1. Your Content. You retain all rights to your Content (defined below). We may use, modify, reproduce and distribute your Content in order to provide and operate the Services. You warrant that (i) you have the right to upload or otherwise share Content with us, and (ii) your uploading or processing of your Content in the context of our Services does not infringe on any rights of any third party. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Content protected in accordance with industry standards. You agree to comply with all legal duties applicable to you as a data controller by virtue of the submission of your Content within the Services. If your Content, including any personal data (as defined under applicable law, which includes, but is not limited to, the Data Protection Act 2018 in the UK, the General Data Protection Regulation EU 2016/679 or “GDPR” and data protection laws of the European Union, European Economic Area, Switzerland (collectively, the “EEA+”)) is processed by us as a data processor acting on your behalf (in your capacity as data controller), we will use and process your Content in order to provide the Services and fulfill our obligations under the Agreement, and in accordance with your instructions as represented in this Agreement and in accordance with Schedule 1. Notwithstanding anything to the contrary, this Section 4.1 expresses the entirety of our obligations with respect to your Content. “Content” means any files, documents, information, notes, recordings, chat logs, transcripts, and similar data that we maintain on your or your users’ behalf, as well as any other information you or your users may upload to your Service account in connection with the Services.

4.2. Your Accounts. You are solely responsible for (i) all use of the Services by you and your users, (ii) maintaining lawful basis for the collection, use, processing and transfer of Content, and (iii) providing notices or obtaining consent as legally required in connection with the Services. We do not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. We are not liable for any loss that you may incur if a third party uses your password or account. We may suspend the Services or terminate the Agreement if you, your users, or attendees are using the Services in a manner that is likely to cause harm to us. You agree to notify us immediately and terminate any unauthorized access to the Services or other security breach.

In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, and data protection laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer shall not permit its users to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.

WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE DATE YOU NOTIFY US OF THE NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.

You will indemnify and defend us against any third party claim resulting from a breach of Section 1.2 or 4, or alleging that any of your Content infringes upon any intellectual property right, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defence and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defence with our own counsel at our own expense.

8.1. LIMITATION ON INDIRECT LIABILITY. WE WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY, OR (vi) DAMAGE TO SOFTWARE OR HARDWARE NOT PROVIDED BY OPEN COSMOS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.

8.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR YOUR BREACH OF SECTIONS 1.2 OR 4 AND YOUR INDEMNIFICATION OBLIGATIONS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF OPEN COSMOS AND OUR SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF ANY AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE.

9.1. Free Services and Trials. Your right to access and use any free Services is not guaranteed for any period of time and we reserve the right, in our sole discretion, to limit or terminate your use of any free versions of any Services.

9.2. Third Party Features. Services may provide the capability for you to link to or integrate with third party sites or applications (“Third Party Services”). We are not responsible for and do not endorse Third Party Services. You have sole discretion whether to purchase or connect to any Third Party Services and your use is governed solely by the terms for those Third Party Services.  The Services use Google Analytics to improve your experience of using the Services and to help us continue to improve the Services. More information about that can be found at https://policies.google.com/technologies/partner-sites?hl=en-GB&gl=uk.

9.3. Beta Services. We may offer you access to beta services that are being provided prior to general release, but we do not make any guarantees that these services will be made generally available (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us, and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide feedback (“Feedback”) about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.

9.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.

9.5. Security Emergencies. If we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Services and we will take action to promptly resolve any security issues. We will notify you of any suspension or other action taken for security reasons.

9.6. Assignment. You may not assign your rights or delegate its duties under the Agreement either in whole or in part without our prior written consent, which shall not be unreasonably withheld, except that you may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of your business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.

9.7. Notices. Notices must be sent by personal delivery, overnight courier or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, or through in-product notices.

9.8. Entire Agreement; Order of Precedence. The Agreement, sets forth the entire agreement between us relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement. We may update the Terms from time to time. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms.

9.9. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third party beneficiary. Our authorized distributors do not have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. The Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labour disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.

9.10. Choice of Law and Location for Resolving Disputes. These Terms shall be governed by the laws of England and Wales, and any disputes arising under these Terms shall be subject to the exclusive jurisdiction of the courts of England.

1.1 To the extent that Open Cosmos acts as a data processor of any parts of the Content which are deemed to be “personal data” (the “Personal Data”) in accordance with any applicable data protection legislation, Open Cosmos shall:

1.1.1 Process the Personal Data only in accordance with your written instructions unless required to do so by law and subject to notifying you (save where by law we are prohibited from so notifying you);
1.1.2 take reasonable steps to ensure the reliability of its employees, staff, officers and agents who may have access to, or be involved in, the processing of the Personal Data;
1.1.3 ensure that the Open Cosmos personnel who have access to and/or Process the Personal Data are obliged to keep it confidential or are under an appropriate statutory obligation of confidentiality;
1.1.4 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful Processing of Personal Data, having regard to the state of technological development and the cost of implementing any measures;
1.1.5 assist you in responding to any request from a data subject;
1.1.6 assist you in your compliance with data protection legislation by:
    1.1.6.1 keeping the Personal Data secure;
    1.1.6.2 notifying you promptly of any Personal Data breaches so you can take such steps as you deem appropriate or necessary;
    1.1.6.3 conducting data protection impact assessments; and
    1.1.6.4 supporting your interaction with supervisory authorities or regulators where the data protection risk assessment indicates that there is a high risk to the Processing;
1.1.7 at your written direction, delete or return Personal Data on termination or expiry of this Agreement unless we ae required or permitted to store the Personal Data by law.
1.1.8 maintain complete and accurate records and information to demonstrate our compliance with this Schedule 1 shall allow you at reasonable times and from time to time to audit and review our compliance with this Schedule 1.
1.1.9 inform you immediately if (in in our opinion) an instruction for the Processing of Personal Data given by you infringes data protection legislation.
1.1.10 only transfer the Personal Data outside of the European Economic Area provided that appropriate and satisfactory contractual and technical measures have been put in pace to protect the Personal Data in the course of such transfers.