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Subscription Agreement

Version Date: February, 2023

THIS SUBSCRIPTION AGREEMENT AND ITS CORRESPONDING ORDER FORM(S) (COLLECTIVELY REFERRED TO AS THIS “AGREEMENT”) GOVERN THE SUBSCRIBER’S (THE “SUBSCRIBER”) USE OF OPSRAMP, INC.’S (“OPSRAMP”) SOFTWARE-AS-A-SERVICE AND RELATED SERVICES (THE “SUBSCRIPTION SERVICE”). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SUBSCRIPTION SERVICE. BY ISSUING AN ORDER FORM, OR BY ACCEPTING THIS AGREEMENT BY ANY ONLINE OR DIGITAL PROCESS, OR BY USING THE SUBSCRIPTION SERVICE, THE SUBSCRIBER HEREBY ACCEPTS THE TERMS AND CONDITIONS SET OUT BELOW. THE INDIVIDUAL ACCEPTING THIS AGREEMENT HEREBY REPRESENTS THAT SUCH INDIVIDUAL IS AN AUTHORIZED REPRESENTATIVE OF THE SUBSCRIBER AND IS AUTHORIZED TO OBLIGATE THE SUBSCRIBER TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, AND SUCH INDIVIDUAL ACKNOWLEDGES THAT OPSRAMP RELIES ON SUCH REPRESENTATION IN ENTERING INTO THIS AGREEMENT. OPSRAMP MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, AND CHANGES TO THIS AGREEMENT WILL BE POSTED ON THE OPSRAMP WEBSITE AND REVISIONS WILL BE INDICATED BY VERSION DATE. MODIFICATIONS TO THIS AGREEMENT WILL BECOME BINDING UPON THE SUBSCRIBER UPON THE SUBSEQUENT RENEWAL OF AN ORDER FORM.

This Agreement, including documents referenced herein, represents the entire agreement between the parties regarding use of the Subscription Service and supersedes all prior written and oral understandings between OpsRamp and the Subscriber, including any interim agreements executed by the parties. The Subscription Service and related services will be performed by OpsRamp in accordance with the Terms and Conditions set forth below. 

TERMS AND CONDITIONS

  1. DEFINITIONS. Any capitalized terms used in this Agreement that are not otherwise defined in this Agreement shall have the meaning as set forth below:
    1. “Authorized Users” shall mean the employees or agents of the Subscriber, as well as contractors performing services for the Subscriber, who are authorized to access and use the Subscription Service, and if the Subscriber is an MSP-Subscriber, then such Subscriber’s customers.
    2. “Documentation” shall mean the OpsRamp product documentation relating to the operation and use of the Subscription Service, including technical program documentation, user manuals, operating instructions and release notes, as updated from time to time by OpsRamp as provided in the Subscription Service.
    3. “MSP-Subscriber” shall mean a Subscriber that is a managed services provider that uses the Subscription Service to provide a managed IT service to its customers.
    4. “Professional Services” shall mean any implementation, training, consulting, data migration, conversion, integration or other services provided by OpsRamp to the Subscriber, as set forth or referenced in an Order Form.
    5. “Subscription Service” shall mean the web-based software-as-a-service offering of OpsRamp that provides provisioning and management functionality for Resources, and also includes the Resident Software.
    6. “Order Form” shall mean an ordering document that represents an order for the use of the Subscription Service executed by the Subscriber and OpsRamp, and which may be in any form or format that references and incorporates by reference this Agreement. 
    7. “Resident Software” shall mean certain downloadable software components that the Subscriber must deploy on the Subscriber’s servers and/or other assets for data collection and communication that is required for performance of the Subscription Service.
    8. “Resource” shall mean any physical asset (such as servers, network switches, and routers) or virtual asset (such as virtual machines, cloud instances, storage buckets, and databases) that has been assigned a resource identification on the Subscription Service.
    9. “Term” shall mean the period beginning upon execution of an Order Form and ending upon termination of this Agreement, as provided for herein.
    10. “User Data” shall mean electronic data about the Subscriber’s Resources and use of the Subscription Service that is collected by Resident Software or otherwise transferred by or for the Subscriber or the Authorized Users and processed in the Subscription Service.
  2. SUBSCRIPTION SERVICE.
    1. Subject to compliance by the Subscriber with the terms of this Agreement, OpsRamp authorizes the Subscriber, through its Authorized Users, to access and use the Subscription Service during the Term for its internal business purposes in accordance with the Documentation. Authorization to access the Subscription Service is granted solely to the Subscriber and the Authorized Users. This authorization is non-exclusive and non-transferrable.
    2. With respect to the Resident Software that is distributed or provided to the Subscriber for use on the Subscriber servers and/or Resources, OpsRamp hereby grants the Subscriber a non-exclusive, non-transferable, non-sublicensable license to use such Resident Software during the Term only in connection with the Subscription Service. 
    3. Although OpsRamp has no obligation to monitor the Subscriber’s use of the Subscription Service, OpsRamp may do so and may prohibit any use of the Subscription Service it believes may be (or is alleged to be) in violation of this Agreement.
    4. OpsRamp will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Subscription Service and prevent the accidental loss or unauthorized access, use, alteration or disclosure of User Data under its control during each Term. 
    5. No rights or licenses are granted by OpsRamp except as expressly set forth herein.
  3. SUBSCRIPTION OPTIONS

              The Terms of offer will detail the level of Subscription Service ordered by the Subscriber, which may be free or charged. 

  1. SUPPORT SERVICES. 

Support services (“Support Services”) that will be provided to the Subscriber will be described in an Order From. 

  1. PROFESSIONAL SERVICES

An Order Form for Professional Services shall specify the specific Professional Services ordered, accompanying specifications, if any, and applicable pricing.

  1. PAYMENT TERMS.
    1. Unless the Subscriber has ordered a free Subscription Service level, the Subscriber will pay OpsRamp the then-applicable fees described in the Order Form for the Subscription Service and Professional Services in accordance with the terms therein (“Fees”). 
    2. OpsRamp will invoice Subscription Service Fees based on usage and any additional Fees that the Subscriber commits to purchase as set forth in an accepted Order Form. If the Subscriber’s actual use of the Subscription Service exceeds the ordered usage, such excess usage will be invoiced as set forth in the Order Form. Fees for Professional Services will be invoiced as set forth in an Order Form or statement of work. Upon thirty (30) days prior notice to the Subscriber (which may be sent by email) OpsRamp reserves the right to change the Fees or applicable charges and to institute new charges and Fees effective for the then-current renewal term. If the Subscriber believes OpsRamp has billed the Subscriber incorrectly, the Subscriber must contact OpsRamp within thirty (30) days of the due date of the applicable invoice. Except for an adjustment or credit, if any, that may be forthcoming as a result of an incorrect billing, all payments are final and non-refundable.
    3. Invoices are due and payable in full within thirty (30) days of the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month (or the maximum permitted by law, whichever is lower) on any outstanding balance. OpsRamp reserves the right to charge for all expenses of collection, including reasonable attorneys’ fees. Non-payment of invoices may result in suspension or termination of the Subscription Service.
    4. The Subscriber shall be responsible for all taxes associated with Subscription Service, and other services provided under this Agreement, other than U.S. taxes based on OpsRamp’s net income. All payments shall be made in U.S. dollars unless otherwise agreed by OpsRamp in writing.
  2. RESTRICTIONS AND RESPONSIBILITIES.
    1. The Subscriber shall not (and shall not permit others to) do the following with respect to the Subscription Service: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, operate as a service bureau, or otherwise make any of it available for access by third parties; (ii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iii) disassemble, reverse engineer, or decompile it; (iv) copy, create derivative works based on or otherwise modify it, (v) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling in it; (vi) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (vii) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs or otherwise engage, in a malicious act or disrupt its security, integrity or operation; (viii) publish or release any benchmarking or performance data applicable to the Subscription Service; (ix) access or disable any OpsRamp or third party data, software or network; (x) perform any load testing of the Subscription Service or attempt to probe, scan or test the vulnerability of the Subscription Service without proper authorization; or (xi) log into a server or account that the Subscriber is not authorized to access. 
    2. The Subscriber represents, covenants, and warrants that the Subscriber will use the Subscription Service only in compliance with the Documentation and all applicable laws and regulations. The Subscriber hereby agrees to indemnify and hold harmless OpsRamp against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing restrictions. 
    3. The Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Subscriber shall also be responsible for maintaining the security of the Equipment, the Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Subscriber’s account or the Equipment with or without the Subscriber’s knowledge or consent.
    4. The Subscriber is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of this Agreement. The Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all the User Data generated, uploaded and transmitted by the Subscriber and Authorized Users. The Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service and notify OpsRamp (or the applicable Reseller) immediately of any unauthorized use of any password or account or any other known or suspected breach of security. 
    5. Subscriber shall comply with all applicable laws concerning the privacy and protection of personal information. Subscriber will be solely responsible for providing any notices required by applicable law to, and receiving any consents and authorizations required by applicable law from, persons whose personal information may be included in account data, User Data, or Authorized User credentials.
    6. The Subscriber acknowledges that the successful and timely provision of the Subscription Service shall require the good faith cooperation of the Subscriber. OpsRamp shall not be liable for any failure to provide the Subscription Service that arises from the Subscriber’s failure to cooperate in good faith with OpsRamp.
  3. MANAGED SERVICES USAGE.
    1. OpsRamp hereby authorizes the MSP-Subscriber to access and use the Subscription Services for the sole purpose of managing Resources owned and/or controlled by MSP-Subscriber’s customers as part of the MSP-Subscriber’s managed IT services offering. The MSP-Subscriber may not use or access the Subscription Service for any other purpose.
    2. The MSP-Subscriber shall obtain binding express written agreement by each of its customers to be bound by either (1) an agreement with the MSP-Subscriber containing the “Minimum Terms” set forth below or (2) the then-current version of the OpsRamp Subscription Service Agreement. The method by which the MSP-Subscriber’s customers shall become bound to the Subscription Service Agreement shall be determined by OpsRamp, and may include hard copy or digital signatures, online click accept format, or method. The MSP-Subscriber shall provide OpsRamp with copies of the Minimum Terms or the Subscription Services Agreements executed by the its customers, as applicable. The MSP-Subscriber agrees to use commercially reasonable efforts to enforce the Minimum Terms or Subscription Service Agreements with its customers. The MSP-Subscriber may not make any changes to the Subscription Service Agreements without OpsRamp’s prior written consent. The Minimum Terms shall: (i) prohibit assignment, timesharing, rental and distribution of the Subscription Service; (ii) prohibit reverse compilation and/or reverse assembly of all or any portion of the Subscription Service; (iii) disclaim all warranties with respect to the Subscription Service other than warranties granted by the MSP-Subscriber itself to its customer; and (iv)  disclaim third party provider’s liability for any indirect, incidental or consequential damages arising from the use and performance of the Subscription Service. OpsRamp shall determine whether the Minimum Terms or the Subscription Service Agreement shall apply. If OpsRamp has not provided the MSP-Subscriber with specific instructions in this regard, then the Minimum Terms shall apply.
    3. OpsRamp grants the MSP-Subscriber a non-exclusive, non-transferable, royalty-free, revocable license during the term of this Agreement to use OpsRamp’s trademarks and logos (“OpsRamp Marks”) solely in connection with the marketing of the Subscription Service as permitted in this Agreement, without the right to sublicense. Any other use of the OpsRamp Marks is not permitted. The MSP-Subscriber agrees to use the OpsRamp Marks only as stated in this Agreement, and in doing so, to follow the standards of quality established by OpsRamp and to adhere to the trademark usage guidelines made available by OpsRamp from time to time. The MSP-Subscriber agrees not to use the OpsRamp Marks in combination with any other trade name, trademark or service mark without the prior written approval of OpsRamp. Upon OpsRamp’s request, the MSP-Subscriber will provide OpsRamp with representative samples of the use of the OpsRamp Marks contained within any materials including web pages, marketing, advertising, promotional and collateral materials. All goodwill created by the use of OpsRamp Marks by the MSP-Subscriber is for the sole benefit of and accrues to OpsRamp. The MSP-Subscriber acquires no right, title or interest in the OpsRamp Marks or the goodwill associated with them, other than the right to use the OpsRamp Marks according to this Agreement. 
    4. The MSP-Subscriber is responsible for providing Level 1 Support to its customers. “Level 1 Support” shall mean accepting requests from its customer for assistance with the Subscription Service, determining the nature of the request (i.e., usability, feature request, fault identification), recording information pertinent to addressing the request and attempting to respond to / resolve the request in a manner satisfactory to its customer. Level 1 Support shall not mean engaging in any engineering level diagnostics of Subscription Services issues or undertaking any other special evaluative processes for which training by OpsRamp has not been made available to the MSP-Subscriber. The MSP-Subscriber shall not instruct its customers to contact OpsRamp for support and all such contact will only be between the MSP-Subscriber and OpsRamp technical personnel. The MSP-Subscriber is responsible to train its technical support personnel to be sufficiently knowledgeable about the functionality and operations of the Subscription Service as necessary to provide Level 1 Support. If such personnel do not maintain such an adequate level of knowledge, then the MSP-Subscriber shall order necessary training services from OpsRamp for such personnel. OpsRamp has no obligation to provide support to the MSP-Subscriber technical support personnel who do not have or maintain adequate levels of knowledge about the features, functionality and operation of the Subscription Service. The MSP-Subscriber shall be responsible for distributing and installing Resident Software on all servers and Resources as required for proper operation of the Subscription Services. 
  4. CONFIDENTIALITY; PROPRIETARY RIGHTS.
    1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of OpsRamp includes non-public information regarding features, functionality and performance of the Subscription Service. Proprietary Information of the Subscriber includes the User Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Subscription Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without violation of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, 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 Disclosing Party, or (e) is required to be disclosed by law, as advised by the Receiving Party’s legal counsel. 
    2. OpsRamp shall own and retain all right, title and interest in and to the Subscription Service and all updates thereto, and all intellectual property rights related to any of the foregoing. 
    3. The Subscriber shall own all right, title and interest in and to the User Data. The Subscriber hereby grants to OpsRamp a worldwide, non-exclusive, fully paid-up license to use the User Data in any manner reasonably necessary to perform the Subscription Service. The Subscriber represents and warrants that the Subscriber owns all right, title and interest in and to the User Data or has a license granting it the rights necessary to permit it to grant the foregoing license. It is the Subscriber’s responsibility to download those portions of the User Data that the Subscriber wants to retain prior termination of this Agreement.
    4. OpsRamp shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Service and related systems and technologies (including, without limitation, information concerning the User Data and data derived therefrom), and OpsRamp will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Subscription Service and for other development, diagnostic and corrective purposes in connection with the Subscription Service and other OpsRamp offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. 
    5. The Subscriber acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Subscription Service provided by the Subscriber to OpsRamp are non-confidential and OpsRamp (as well as any designee of OpsRamp) shall be entitled to the unrestricted use and dissemination of this information for any purpose, commercial or otherwise, without acknowledgment or compensation to the Subscriber.
  5. TERM AND TERMINATION. 
    1. This Agreement shall continue for the Term. The Term shall terminate upon the earlier of:  (i) at any time when there are no outstanding Order Forms or (ii) upon written notice of a breach of this Agreement from either party to the other if such breach is not cured within thirty (30) days from the date of the notice. Upon termination of this Agreement, or the termination or expiration of an Order Form, the Subscriber shall cease to access the Subscription Service and shall delete and destroy all copies of Resident Software in the Subscriber’s possession. Upon any termination or expiration, OpsRamp will make all then-current the User Data available to the Subscriber for electronic retrieval for a period of thirty (30) days, but thereafter OpsRamp may, but is not obligated to, delete stored the User Data. 
    2. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 
  6. WARRANTY DISCLAIMER.
    1. The Subscription Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by OpsRamp or by third-party providers, or because of other causes beyond OpsRamp’s reasonable control. 
    2. OPSRAMP DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION SERVICE. THE SUBSCRIPTION SERVICE IS PROVIDED “AS IS” AND OPSRAMP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  7. INDEMNIFICATION.

Subscriber agrees to defend, indemnify and hold harmless OpsRamp, its affiliates and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to any legal claim, suit, action or proceeding by a third party arising out of or relating to use of the Subscription Service by Subscriber or an Authorized User in a manner that breaches this Agreement or an Order Form, violates applicable law or is not in conformance with the Documentation.

  1. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, OPSRAMP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OF THE SUBSCRIPTION SERVICE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR LOSS OF BUSINESS OR REVENUE; (B) FOR ANY DIRECT, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR UNAUTHORIZED ACCESS TO THE SUBSCRIPTION SERVICE; (D) FOR ANY MATTER BEYOND OPSRAMP’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEEDING THE GREATER OF FEES PAID OR PAYABLE TO OPSRAMP ATTRIBUTABLE TO THE PERIOD OF SIX (6) MONTHS PRIOR TO A CAUSE OF ACTION ARISING AND $1,000, IN EACH CASE, WHETHER OR NOT OPSRAMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

  1. MISCELLANEOUS.
    1. Publicity. The Subscriber agrees that OpsRamp may use the Subscriber’s name and may disclose that the Subscriber is a customer of OpsRamp products and services in OpsRamp’s advertising, press, promotion and similar public disclosures; provided, however, that such advertising, promotion or similar public disclosures shall not indicate that the Subscriber in any way endorses any OpsRamp products or services without prior written permission from the Subscriber. The Subscriber agrees that OpsRamp may issue a press release regarding their relationship, provided that the parties mutually agree to the content and timing of such release which approval shall not be unreasonably withheld or delayed. Upon a request from OpsRamp, the Subscriber will serve as a reference site for the Subscription Service and will prepare with OpsRamp a case study of the Subscriber’s use of the Subscription Service. 
    2. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    3. Amendment. This Agreement may be updated and modified by OpsRamp as indicated at the beginning of this Agreement. 
    4. Assignment. This Agreement is not assignable, transferable or sublicensable by the Subscriber except with OpsRamp’s prior written consent. OpsRamp may assign this Agreement to an affiliate or to any entity that purchases substantially all of the equity or assets of the business unit of OpsRamp that is responsible for the performance of this Agreement. 
    5. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Subscriber does not have any authority of any kind to bind OpsRamp in any respect whatsoever. 
    6. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 
    7. Law and Jurisdiction. All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement shall be governed and construed by the law of California, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against a party arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Santa Clara County, State of California. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Notwithstanding the foregoing, OpsRamp may seek equitable relief in any applicable jurisdiction in an action for protection of OpsRamp’s intellectual property. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. 
    8. Force Majeure. OpsRamp shall not be responsible or liable for any loss, damage, delay or failure to act caused by war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, interruption to or absence of energy supplies, lock outs, strikes, other labor disputes, the failure of OpsRamp’s suppliers or carriers to meet their contractual obligations, or, without limitation, any other cause beyond OpsRamp’s reasonable control.
    9. No Export. The Subscriber may not remove or export from the United States or allow the export or re-export of the Subscription Service, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. 
    10. U.S. Government Usage. As defined in FAR section 2.101, the Subscription Service and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 
    11. High Risk and Restricted Data Activities. The Subscription Service is not fault-tolerant and is not designed, manufactured or intended for use or resale (i) as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Subscription Services could lead directly to death, personal injury, or severe physical or environmental damage or (ii) for containing or processing health, financial or other similar restricted or sensitive data that is regulated under law including, but not limited to HIPAA (Health Insurance Portability and Accountability Act), GLBA (Gramm-Leach-Bliley Act) or similar federal or state data security statutes (“High Risk and Restricted Data Activities“). OpsRamp and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk and Restricted Data Activities.
    12. GDPR Compliance. If the use, processing and/or transfer of the User Data in the Subscription Service is subject to regulation under the European Union General Data Protection Regulation (GDPR), then the parties will enter into OpsRamp’s Data Processing Agreement (DPA) as located at https://www.opsramp.com/legal/data-processing-agreement/, as may be updated by OpsRamp from time to time. Upon execution thereof, such DPA will be deemed issued under and incorporated by reference into this Agreement. This provision does not apply to Authorized Users that are using the Subscription Service under an agreement with a managed services provider that is providing managed services to the Authorized Users.
    13. Data Backup. The Subscription Service will maintain certain data transferred for the purpose of the performance of the Subscription Service. Although OpsRamp performs regular routine backups of data, the Subscriber is primarily responsible for all data that the Subscriber has transferred (including the User Data) or that relates to any activity the Subscriber has undertaken using the Subscription Service. The Subscriber agrees that OpsRamp shall have no liability to the Subscriber for any loss or corruption of any such data, and the Subscriber hereby waives any right of action against OpsRamp arising from any such loss or corruption of such data.