Terms

Agreement to Use opscotch Products
This agreement allows you to use the opscotch Products as provided below and describes the contractual relationship between you and opscotch Limited arising from your use of opscotch Products. The laws of New Zealand govern this agreement and all disputes shall be resolved in courts in New Zealand. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

YOU CAN USE OPSCOTCH PRODUCTS ONLY IF YOU READ, UNDERSTAND, AND ACCEPT THIS AGREEMENT AND HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO. 

You accept this agreement by signing this agreement, clicking “I agree” or similar terms when first downloading, installing, or using opscotch Products. If you accept this agreement, you can use opscotch Products as provided by this agreement until this agreement ends. opscotch may change opscotch Products and the features it offers at any time. Your continued use of opscotch Products constitutes continuing agreement to these terms. 

An Order is a document agreed upon by both you and opscotch Limited, which directly refers to this agreement. If there's any disagreement between this agreement and the Order, this agreement takes precedence, unless the Order specifically says otherwise.
 

opscotch's Products
opscotch limited reserves all rights to all products, services, and information offered through opscotch’s website, including all intellectual property rights related to opscotch’s products and services except as opscotch provides otherwise (“opscotch Products”).

opscotch may provide opscotch Products to other customers and may provide software updates to opscotch Products from time to time as provided in this agreement.
 

Your use of opscotch Products

You can use opscotch Products by accepting this agreement and obtaining the appropriate license, usage terms, and deployment option through an Order.

You can authorize other persons or organizations to use opscotch Products on your behalf to the extent allowed by this agreement, but except as specifically provided in your Order you cannot process data using opscotch Products for anyone else or let anyone else use your access to opscotch Products to process data using opscotch Products for anyone else other than you. You are responsible for all use related to your access to opscotch Products. Your use of and access to opscotch Products is not for resale, transfer, or other distribution except as specifically provided in your Order.

opscotch may use free- or open-source software in its products or services, including without limitation as described in opscotch’s documentation available at https://docs.opscotch.co/. Such software may have additional terms and conditions, but those terms and conditions will not restrict your use of opscotch’s products or services.
 

Payment Terms

4.1 Payment
You must pay for all opscotch Products as provided by this agreement and your Order. You will be charged fees for opscotch Products based on the license, usage terms, and fee schedule described in your Order or, if a fee schedule is not included in your Order, at the pricing section on opscotch’s website; the applicable fee schedule is incorporated by reference into this agreement.

If purchasing via credit card, payment is due immediately upon order. For all other methods of payment, unless otherwise specified in the Order, payment terms are net thirty (30) days from the date of the invoice. 

opscotch will provide you with a valid GST tax invoice when you place an order.

You will not be charged fees for opscotch Products that opscotch designates as free on its website. 

All payments under this agreement shall be made without any set off or deduction except to the extent required by law. If you are required by law to make any deduction, you must pay opscotch any additional amount that is necessary to ensure receipt by opscotch of the full amount which opscotch would have received but for the deduction.

4.2 Adjustments
While opscotch may change the fee schedule located on its website from time to time, such changes will not affect the pricing terms of any existing agreement or order until the conclusion of the existing term and its subsequent renewal.

4.3 Overdue Amounts
If You do not pay opscotch’s invoices in accordance with this agreement by the due date, without limiting any other right or remedy of opscotch, opscotch may: 

a) charge interest on overdue amounts, provided it notifies You of this in advance of charging that interest.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by opscotch’s primary trading bank as at the due date plus 2% per annum; and/o

b) refer the matter to a debt collection agency, start proceedings against you, or take any other action to recover all amounts owed (which will include You owing, and opscotch being entitled to recover, interest and debt collection and other costs such as the actual fees charged by opscotch’s lawyers in relation to the matter); and/or

c) immediately revoke any discount in your Order (in which case You will automatically become liable to pay the undiscounted fees, plus GST); and/or

d)treat the non-payment as a breach of a material provision of this agreement that is not capable of being remedied and terminate the agreement under clause 10.
 

Data Processing
Your use of opscotch Products is governed by the terms set out in this agreement. opscotch may update or change the terms related to data processing after providing notice on its website of the change; such changes will become effective as specified in the notice. Your use will be subject to the terms in effect on the day of your use.
 

Support
opscotch will provide services as provided in your Order. opscotch will provide regular maintenance updates for opscotch Products. opscotch will provide support services and maintenance updates for the current version of opscotch Products. opscotch may provide support services and maintenance updates for previous versions of opscotch Products on an exception basis to resolve critical security vulnerabilities.
 

Compliance
You and opscotch must follow all applicable laws, rules, regulations, contracts, and other legal requirements. You and opscotch must comply with all applicable anti-bribery, anti-corruption, anti-money laundering, sanctions, and prohibited-country requirements, limitations, and rules. You must comply with all applicable import and export controls and obtain all licenses and approvals necessary to download, deploy, or use opscotch Products.

You cannot download, deploy, or use opscotch Products, or store information in or through opscotch Products, in any way that violates any legal requirement or right of a third party. You cannot modify opscotch Products, create derivative works from opscotch Products, or reverse engineer any part of opscotch Products unless agreed to by opscotch in your Order.
 

Data and Confidentiality
You and opscotch own your respective data and confidential information. Your data and confidential information include data that you input into opscotch Products or process with opscotch Products. You are responsible for protecting your data from loss, alteration, and disclosure. You are responsible for protecting access to your data and for protecting any encryption keys or security credentials needed to access data encrypted by opscotch products.

opscotch receives and uses data as provided by opscotch’s Privacy Policy, which is available at https://docs.opscotch.co/privacy and incorporated by reference into this agreement. Your data does not include opscotch’s operational data or opscotch’s confidential information.

You and opscotch must take reasonable steps to protect each other’s confidential information, including by following legal requirements, limiting access to the other party’s confidential information, and ensuring each other’s employees and other agents do not violate this agreement. Confidential information includes without limitation information designated verbally or in writing as confidential, information related to future products of the other party before the other party releases the information, audit information such as penetration-testing reports, trade secrets, and otherwise proprietary information.

You and opscotch can only use or disclose each other’s confidential information for purposes related to this agreement and as required by law. You and opscotch may not otherwise disclose to any party not subject to this agreement any confidential information of the other party without the consent of the other party or as required by law.

After this agreement ends, you and opscotch must continue to protect each other’s confidential information and must return or destroy any confidential information of the other party, if requested by the other party, except to the extent necessary to comply with applicable law or other record-keeping requirement.
 

Limited Warranties and Liability
You and opscotch are entitled to seek all legal or equitable remedies that will satisfy each of our rights and obligations under this agreement or your obligation to pay for opscotch Products or any additional features of any opscotch Products you have purchased from opscotch.

IF A COURT FINDS THAT EITHER PARTY BREACHED THIS CONTRACT AND LOSSES WERE SUFFERED AS A RESULT OF THAT BREACH, THE BREACHING PARTY WILL COMPENSATE THE NON-BREACHING PARTY FOR SUCH LOSSES TO THE EXTENT ALLOWED BY THIS AGREEMENT.

THE MAXIMUM CUMULATIVE LIABILITY UNDER ANY THEORY OF LIABILITY RELATED TO THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES YOU PAID TO OPSCOTCH IN THE TWELVE MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY UNLESS THE LIABILITY RELATES TO YOUR VIOLATION OF OPSCOTCH’S INTELLECTUAL PROPERTY RIGHTS, A VIOLATION OF THE CONFIDENTIALITY REQUIREMENTS IN SECTION 4, OR OPSCOTCH’S INDEMNIFICATION OBLIGATIONS.

OPSCOTCH PROVIDES OPSCOTCH PRODUCTS “AS IS” AND “AS AVAILABLE.” YOU ASSUME THE ENTIRE RISK OF USING OPSCOTCH PRODUCTS. OPSCOTCH IS NOT RESPONSIBLE FOR YOUR USE OF OPSCOTCH PRODUCTS OR ANY CONSEQUENCES TO YOU OR ANYONE ELSE THAT MAY OCCUR RELATED TO YOUR USE OF OPSCOTCH PRODUCTS OR THE RELIANCE ON DATA PROCESSED BY OPSCOTCH PRODUCTS.

OPSCOTCH MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS RELATED TO OPSCOTCH PRODUCTS, INCLUDING WITHOUT LIMITATION WARRANTIES OR REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR REQUIREMENT, TITLE, QUALITY, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.

YOU AND OPSCOTCH ARE NOT LIABLE TO EACH OTHER RELATED TO YOUR USE OF OPSCOTCH PRODUCTS FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES.

YOU AND OPSCOTCH ARE NOT LIABLE TO EACH OTHER RELATED TO YOUR USE OF OPSCOTCH PRODUCTS FOR ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA, EQUIPMENT REPLACEMENT COSTS, DATA REPLACEMENT COSTS, OR OPERATING COSTS.

YOU AND OPSCOTCH ARE NOT LIABLE TO EACH OTHER IF IT BECOMES IMPOSSIBLE TO COMPLY WITH THIS AGREEMENT, BUT EACH OF US MUST USE REASONABLE EFFORTS TO TRY TO MITIGATE SUCH ISSUES.

OPSCOTCH IS NOT LIABLE IN ANY WAY, UNDER ANY THEORY OF LIABILITY, FOR THIRD-PARTY PRODUCTS EVEN IF OPSCOTCH LISTS THE THIRD-PARTY PRODUCT ON ITS WEBSITE OR OTHER MEDIA OR THE THIRD-PARTY PRODUCT INTERACTS OR FUNCTIONS WITH OPSCOTCH PRODUCTS. OPSCOTCH MAY MAKE AVAILABLE THIRD-PARTY PRODUCTS THROUGH OPSCOTCH PRODUCTS, BUT ONLY “AS IS” AND “AS AVAILABLE.” YOU ASSUME THE ENTIRE RISK OF USING THIRD-PARTY PRODUCTS.

Notwithstanding the foregoing, opscotch will indemnify you for damages awarded against you from a third-party claim that opscotch Products infringe the intellectual property rights of that third party except to the extent the infringement arises from your breach of this agreement, the use of your data or any software or technology other than opscotch Products, or otherwise from your actions. opscotch may, in its sole and complete discretion, modify an opscotch Product to make it no longer infringe a third-party right, obtain authorization for you to continue using an opscotch Product under this agreement, or terminate this agreement or an Order and refund prior payments attributable to the unused remainder of the contract term of paid usage as provided in Section 6.

To be eligible for indemnification, (1) you must promptly notify opscotch in writing of the action, proceeding, or other claim that may give rise to damages, and no later than notice sufficient to allow opscotch to respond to such claims without prejudice; (2) you must reasonably cooperate with opscotch at opscotch’s expense; and (3) opscotch must have exclusive right to control and direct the investigation, defense, or settlement of such claims. You may participate in the defense of such claims at your expense. You may not settle such claims without opscotch’s prior written consent unless the settlement fully and unconditionally releases opscotch from liability and does not require opscotch to pay any amount, take any action, or admit any liability.

This agreement does not create any employment, partnership, joint venture, or other agency relationship between you and opscotch. This agreement only acts to benefit you and opscotch; it does not act to benefit any third party.
 

Ending the Agreement
You and opscotch can end the agreement at any time for any reason by providing written notice to the other party. If you terminate the agreement, you must pay, within thirty days from the date the agreement ended, any unpaid balance owed to opscotch related to your use of opscotch Products. You will not be entitled to a refund for any prepaid amounts or for the unused portion of the contract term.

If opscotch terminates the agreement without cause, opscotch will refund you for any prior payments attributable to the unused remainder of the contract term or paid usage.

All obligations and rights in Section 2, Section 4, and Section 5 survive the end of this agreement.
 

Notices
You must send all notices related to this agreement in writing to notice@opscotch.io. opscotch must send all notices related to this agreement in writing to the email address you used to accept this agreement below. You and opscotch agree that notices sent pursuant to this agreement are legally sufficient for all purposes.