Operandio Terms of Service Agreement

(Updated January 2020)

Operandio Pty Ltd (“Operandio”) provides a limited right to access the Operandio software (the “Service”) solely on the terms and conditions set forth in this Terms of Service (the “Agreement”) and on the condition that you (“Customer” or “you”) accept this Agreement as set forth below. By clicking the “accept” button you, (A) accept this Agreement and agree to be bound by its terms; and (B) represent and warrant that you are 18 years of age or older, and (ii) if you are agreeing on behalf of a corporation, governmental organization, or other legal entity, you have the right, power and authority to enter into this Agreement on behalf of such legal entity. If you do not agree to the terms of this Agreement, then Operandio will not provide you with access to the Services.

By your acceptance, a binding contract is then formed between Operandio and the company in accordance with the terms and conditions of this Agreement.

If you are entering into this Agreement on behalf of your company, the terms “you” and “your” in this Agreement means your company and all of its Authorised Employees as defined below. If you are entering this Agreement on your own behalf, you agree that you are personally bound by this Agreement and in such case, the term “you” and “your” in this Agreement mean you, individually.

Services and Right to Access

• 1. Subject to your compliance with this Agreement, including payment of applicable fees, and during the Term of this Agreement, Operandio grants you a limited, non-exclusive, non-transferable, non-sub-licensable right to access, use, and permit Authorised Users to access the features and functions of the Operandio Service, a proprietary, commercially available, hosted software product and related documentation (the “Software”) via a web browser solely for your internal business purposes. “Authorised Users” means employees, contractors, agents, or other individuals Authorised by Customer to access the Services pursuant to the terms and conditions of this Agreement. Operandio hosts and retains physical control over the Software and only makes it available for access, and use by Customer and its Authorised Users (if applicable) over the Internet through a Web-browser. Nothing in this Agreement obligates Operandio to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. Notwithstanding anything to the contrary, no license of intellectual property or software is granted (whether expressly or by implication) under this Agreement.
  2. Operandio reserves the right to discontinue, suspend, or modify its Services without notice or liability to any third party.
     You may permit Authorised Users to access the features and functionality of the Services. As between Customer and its Authorised Users, Customer is responsible for the acts and omissions of the Authorised Users. Customer agrees to promptly notify Operandio, upon awareness, in the event of a security breach or any unAuthorised access.

Term of Agreement and Renewal

1. 1. Your right to use the Service and the term of this Agreement commence on the date you accept this Agreement and continues until your subscriptions granted pursuant to your registration and this Agreement have expired or been terminated or earlier, in the event of your breach of this Agreement (each term and renewal term, the “Term”).
   2. If you elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
   3. Authorised User subscriptions purchased by Customer commence on the service effective date specified upon payment for the Services and continue for the subscription term selected during registration. Except as otherwise specified, all Authorised User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.

Termination

1. 1. Operandio may terminate this Agreement, effective upon written notice to Customer if Customer breaches this Agreement and such breach is incapable of cure or remains uncured fifteen (15) days following written notice by Operandio of such breach.
   2. Operandio may terminate this Agreement without cause upon thirty (30) days advance written notice. Additionally, Operandio may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
   3. A Billing Admin on the account may terminate this Agreement by logging into your Operandio account and submitting a cancellation request. Upon cancellation, your account will automatically be set to cancel at the end of your billing period. If you cannot login to your account, you may email corporate at(@) operandio dot(.) com. All fees are non-refundable, but you will not be charged after the effective date of your termination. Prepaid annual subscriptions may be terminated the same way, but there are no prorated refunds and cancellation is effective at the annual renewal date.
   4. Upon request by you made within 30 days after the effective date of termination, Operandio will make available to you for download a PDF of your written content (not including video or audio). After such 30-day period, we shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of your Data in our systems or otherwise in our possession or under our control.
   5. You agree that Operandio may downgrade, terminate or suspend your access to Operandio without prior notice and without liability if such termination or suspension is based on (a) Operandio’s good faith belief that you have violated any of the terms and conditions of this Agreement, (b) one–hundred eighty (180) days of inactivity with respect to the Operandio service or (c) nonpayment of any fees owed to Operandio. If your account type is free, your account may be terminated upon sixty (60) days of inactivity.

Software Usage Rights and Restrictions; Service Levels

1. 1. You agree that the Operandio Service may be made available in free or paid versions at different levels, and that not all features and functionality of the Operandio service may be available in each version or level, which may be changed from time to time. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. You shall not, shall not agree to, and shall not authorise or encourage any third party to:
      • use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Operandio;
      • use the Service for any fraudulent or inappropriate purpose;
      • attempt to decipher, decompile, hack, delete, augment, alter, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Operandio website.
      • resell, duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Operandio.
      • use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service.
      • rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
      • publish any material on any Operandio websites that contain sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
   2. Operandio shall: (i) provide its basic support for the Services to you at no additional charge, and/or upgraded support if purchased separately during registration for the Services, (ii) use commercially reasonable efforts to make the Services available 99.9% of the time during each calendar month during the Term (the “Availability Commitment”), 24 hours a day, 7 days a week, except for: (a) planned downtime (which we shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks. The Services will be “available” if the Services may be accessed by Customer and its Authorised Users over the Internet. The Services will not be considered “unavailable” due to failures of the Internet or the Customer’s network or due to any suspension of Services by Operandio as permitted in this Agreement. If the total “availability” based on the foregoing is less than the Availability Commitment, and Customer provides written notice to Operandio, then Operandio will provide a credit equal to one (1) day of the relevant Subscription Fee (the “Credit”). The total Credit will not exceed 50% of the applicable Subscription Fee for the relevant month. The foregoing sets forth Operandio’s sole obligation and liability in connection with any service level failure.
   3. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. We shall not (a) disclose your Data except as compelled by law or as expressly permitted in writing by you, or (b) access your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.
   4. If you integrate with Operandio using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to suspend your API connections, or suspend or terminate your Operandio account.

Payment Terms

1. 1. Customer shall pay the subscription fee (“Subscription Fee”) for the Services selected during registration, on either a monthly or prepaid annual basis as selected by you during registration. ALL FEES ARE NON-REFUNDABLE.
      
   2. Monthly Terms: If you select the month-to-month subscription during registration for the Services, your subscription renews automatically each month until terminated by you as outlined above.
   3. Annual Terms: If you select the yearly subscription during registration, the Term shall be for a one (1) year period without the right to terminate for convenience during such 1-year minimum commitment. The annual subscription fee is non-refundable. Upon the anniversary of your one-year subscription, your subscription will automatically renew for subsequent one-year periods, unless you cancel your subscription with at least thirty (30) days written notice to Operandio prior to renewal.
   4. Credit Card Authorisation. During registration, you will be required to designate a payment method and provide your credit card information. During the Term, all subscription fees will be charged automatically to the credit card on file, annually in advance for annual subscriptions, and monthly on the monthly anniversary of the date of registration for monthly subscriptions. You will receive a receipt via email when your credit card has been charged. You hereby authorise Operandio to automatically charge your designated credit card for the Subscription Fees in advance as set forth in this Agreement and as selected during registration for the Operandio Service without any further authorisation from you. Customer acknowledges that the foregoing registration will remain in effect until Customer cancels such authorisation by providing written notice to Operandio at corporate at(@) operandio dot(.) com. If your card cannot be charged, your access to Services may be suspended and you will need to update your card information in order to resume use. There will be no refunds or credits for partial months of service, upgrade/downgrade accounts, or for months unused with an open account.
   5. Taxes. All Subscription Fees are exclusive of all taxes or duties imposed by governing authorities, including without limitation sales, use, excise, gross receipts and other taxes and fees. Customer agrees to be responsible for payment of such taxes arising from the payment of any Subscription Fees.
   6. Fee Increases. Operandio may at any time increase the Fees or institute new charges or fees, which will be effective for the following month in a monthly subscription or in for the subsequent 1-year renewal term for an annual subscription. Operandio will provide you with notice of the increased fees prior to the renewal term. If you do not agree to any such fee changes, then you may cancel your subscription to the Service and stop using the Software prior to the commencement of the renewal subscription period for which the price change applies.
   7. Disputed Charges. Customer must notify Operandio in writing of any disputes regarding Fees within thirty (30) days after the date of the disputed charge, otherwise Customer is deemed to have agreed to the charges. If you have issued a dispute to your bank or credit card provider, we will be unable to issue a refund, as the bank or provider is the legal deciding party in that instance. However, if you cancel the dispute, then, we may issue refund if deemed merited.

Affiliate Obligations; Use Restrictions

1. 1. If you are participating in Operandio’s affiliate program as an affiliate (“Affiliate”), then the following terms apply in addition to the other obligations, representations, and warranties set forth in these Terms. Affiliate shall:

1. 1. • • Not make any unAuthorised representations or warranties about Operandio or the Operandio services;
        • Comply with the usage restrictions in section 4.1 above;
        • Not engage, directly or indirectly, in any spamming activities or advertise Operandio’s Services on any coupon or discounting websites; and
        • Only place the Operandio affiliate link on a site controlled by you.
   2. Operandio may terminate your status as an Affiliate at any time and In the event of Affiliate’s breach of any of the terms and restrictions set forth herein with or without notice to Affiliate. Upon termination, you will no longer be able to access your Operandio affiliate link and must immediately cease any use of the Operandio name and logo and return any Confidential Information to Operandio.

Intellectual Property Rights and Data

1. 1. You acknowledge that Operandio owns all right, title and interest in and to the Service and the Software, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. You agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. Operandio reserves all rights not expressly granted to you in this Agreement.
   2. You retain all right, title and interest to any and all information or data provided, input or uploaded to Operandio by you, or by Operandio on your behalf (the “Data”). Operandio may utilize data capture tools to compile and analyse certain transactional and performance data. You acknowledge that Operandio retains all right, title and interest to such transactional and performance data related to use of the Software, and Operandio may collect, use and disclose such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal any personally identifiable information.
   3. Customer and Operandio may agree to a separate statement of work for the development of custom documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for you by Operandio (“Deliverables”). Operandio will license such Deliverables to you, solely for your internal use during the Term of this Agreement. Operandio retains ownership and may reuse any Deliverables, provided that such use does not reveal Your identity or Your Confidential Information.
   4. Operandio shall retain all right, title and interest in and to the Software, Services, the documentation for the Software, and all modifications and/or enhancements to the Software. If you provide enhancement requests, recommendations, or other feedback to Operandio, you hereby grant Operandio a worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, distribute, and exploit such feedback as Operandio sees fit, without restriction of any kind.

Publicity

1. 1. You agree that Operandio can disclose the fact that you are a customer and identify you in customer lists or other marketing materials. During the Term of this Agreement, and unless otherwise set forth, you grant Operandio the right to reference you, along with Your logo, in marketing materials and on Operandio’s public website for publicity purposes.

Warranties and Liability

1. 1. Operandio represents, warrants, and covenants to Customer follows: (i)Operandio possesses all rights necessary to grant to Customer the rights set forth in this Agreement; (ii) the Software will perform substantially in accordance with the technical requirements documents that are generally provided by Operandio in connection with the Software (“Documentation”); and (iii) the Services will be performed in a professional, workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
   2. THE OPERANDIO SERVICES ARE PROVIDED “AS IS.” OPERANDIO HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. OPERANDIO DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. NO WARRANTY IS MADE BY OPERANDIO ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. OPERANDIO IS NOT RESPONSIBLE FOR THE OPERATION OF THE INTERNET, ANY HARDWARE, SOFTWARE, OR OTHER CONTENT PROVIDED BY THIRD PARTIES, DAMAGES THAT RESULT FROM DOWNLOADING ANY MATERIALS THROUGH THE SERVICES, OR THE FAILURE OF ANY NETWORKS USED IN CONNECTION WITH THE SERVICES.
   3. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOSS OF DATA OR LOSS PROFITS ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE OPERANDIO SERVICES.  THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT POSSIBLE UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY OPERANDIO FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE IMPOSITION OF LIABILITY. THE LIMITATIONS APPLY REGARDLESS OF THE FAILURE OF ANY OTHER REMEDY.

Data Breach Notification

1. 1. Both parties agree as followss in the event of a security breach:
      • External Breach: In the event of a security breach by any third party, excluding your employees or third-party contractors, Operandio will immediately: (i)initiate remedial actions that are consistent with industry standards; (ii) notify you of the security breach, its nature and scope, the nature and scope of remedial actions Operandio will undertake, and the timeline within which Operandio expects to remedy the breach.
      • Internal Breach: In the event of a security breach by your employee or third-party contractor, you will be responsible for taking prompt remedial actions and agree to immediately notify Operandio of the breach and steps you expect to remedy the breach.
      • To comply with all applicable law, regulations, and requirements regarding such security breaches.

Indemnification

1. 1. You agree to hold harmless, defend, and indemnify Operandio, and its affiliates, officers, managers, members, agents, and employees (the “Indemnitees”) from and against any third party claim, suit, demand, and any damages, losses, or costs (including reasonable attorneys’ fees) arising from or in any way related to (i) your breach of this Agreement or your use of the Software, or (ii) your violation of any applicable law or regulation. Operandio will provide you with written notice of such claim, suit or action that is subject to indemnification under this Agreement.

   Compliance with Laws and Control Disclaimer

   1. 1. Each party represents and warrants to the other party that it will comply with all laws, rule, or regulations applicable to such party’s activities in relation to this Agreement in all material respects.
      2. Operandio will not provide you with legal advice regarding compliance, data privacy or other relevant laws, rules or regulations in the jurisdictions in which you use the Software.
      3. You understand that the Software may be configured and used in ways that do and do not comply with applicable laws and it is your sole responsibility to monitor its compliance and your Authorised Users’ compliance with all relevant laws.
      4. You acknowledge that Operandio exercises no control over your specific human resource practices implemented using the Software or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or Authorised user of the Software. Operandio hereby expressly disclaims all liability arising from your decisions and from harmful data or code uploaded to the Software by you, your employees or contractors.

   Entire Agreement and Amendments; Miscellaneous

   1. 1. All notices, requests, consents, demands and other communication required under this Agreement shall be in writing and deemed to have been given when delivered by email with written confirmation of receipt, by hand,  or on the third day after the date mailed, by certified or registered mail, return precept requested.
      2. This Agreement includes any schedules and exhibits attached hereto, and any executed Order Forms between you and Operandio. Such documents encompass the entire Agreement between you and Operandio with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral.
      3. Operandio may, in its sole discretion, revise or modify this Agreement at any time. Such changes, modifications, additions or deletions shall be effective immediately upon notice to you, which may be given by any means including, but not limited to, posting on the Operandio website, or by electronic or conventional mail, or by any other means by which Customer obtains notice thereof. Continued use of the Service after any such modifications to the Agreement shall constitute your agreement and consent to such changes. Unless explicitly stated otherwise, any new features that enhance or augment the current Service shall be subject to this Agreement.
      4. Customer may not assign its rights or interest under this Agreement without the prior written consent of Operandio. This Agreement is for the sole benefit of the parties to this Agreement and their respective permitted assigns.
      5. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
      6. Customer’s payment obligations will survive termination of this Agreement.

   Waiver

   1. 1. The failure of Operandio to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The Agreement constitutes the entire agreement between you and Operandio and govern your use of the Service, superseding any prior agreements between you and Operandio (including, but not limited to, any prior versions of the this Terms of Service). If you have any questions regarding this Agreement or if you wish to discuss the terms and conditions contained herein please contact Operandio.

   Have more questions? We’re here to help, so please contact us at hello at(@) operandio dot(.) com