This subscription agreement is composed of these Terms of Service (including any annexes and appendices, referred to as “Terms”), together with any Order Form(s) and the Data Processing Agreement available athttps://mars.otterdata.ai/terms/(collectively, the “Agreement”). It is entered into between the Customer (“Customer” or “you”) and Otter Data Inc. or another legal entity specified in the Order Form (“Otter Data”) (each a “Party,” collectively, the “Parties”). This agreement governs the Customer’s use of the Software as described in the Order Form. You indicate your agreement to these Terms by performing any of the following actions: clicking the respective button or checkbox during account registration, creating an account, or accessing or using Otter Data Software under any plan offered by Otter Data. If you accept these Terms on behalf of a company, you confirm that you have the authority to bind the company to this agreement. If you lack this authority or do not fully agree to these Terms, you are not permitted to use the Software.
1.1. “API” refers to any application programming interface provided by Otter Data to the Customer under this Agreement.
1.2. “Authorized Users” are individuals, including the Customer’s employees, contractors, or consultants, registered in Otter Data’s system using their contact emails for communication with Otter’s services.
1.3. “Customer Content” encompasses any data, files, applications, information, or materials entered into the Software by or on behalf of the Customer.
1.4. “Intellectual Property Rights” include all rights related to inventions, patents, copyrights, trademarks, trade names, domain names, trade dress, goodwill, designs, software, databases, confidential information (including know-how and trade secrets), and other intellectual property, whether registered or not. This also includes applications, renewals, or extensions of such rights, and equivalent protections worldwide.
1.5. “Order Form” means either: (i) A signed order form between the Parties, or (ii) An online registration form or click-through agreement referencing these Terms.
1.6. “Software” refers to the software applications specified in the Order Form, provided by Otter Data, including updates, associated APIs, software development kits, documentation, and tools supplied by Otter.
2.1. Otter Data grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Software under this Agreement solely for internal business purposes. This license does not include access to the software’s code. Otter reserves the right to suspend access for maintenance, both scheduled and emergency. The Customer is responsible for ensuring its Authorized Users comply with the Agreement.
2.2. The Customer and its Authorized Users shall not:
2.3. The Customer is responsible for: (i) All activities under their account(s). (ii) Content they provide (“Customer Content”) and must indemnify Otter and its affiliates from any claims, losses, or costs (including legal fees) arising from such content.
2.4. Otter retains all rights, ownership, and interests, including intellectual property rights, to the Software and any improvements, enhancements, or modifications.
2.5. Rights under this Agreement are limited to the Customer entity specified in the Order Form. Extensions to affiliates are only permitted if explicitly agreed in the Order Form.
2.6. Customers may provide feedback on the Software, including suggestions for enhancements. Otter has full discretion over using such feedback and is under no obligation to compensate the Customer. Otter may integrate this feedback into its products or services as it sees fit.
2.7. Otter may collect and analyze data regarding the Software’s use and performance, including Customer Content. Otter may: (i) Use this data to improve the Software and for diagnostic or development purposes. (ii) Share this data in aggregate or de-identified forms for any purpose.
2.8. The Customer is responsible for securing and maintaining all necessary equipment and services (e.g., hardware, servers, operating systems) required to connect to and use the Software effectively.
3.1. Fees will be determined by the pricing specified in the signed contract (Order Form) between the Parties. If no signed contract exists, fees will be invoiced based on the current pricing available at the time of agreement. Should the Customer’s usage exceed limitations or require additional payments, such fees will be billed accordingly, and the Customer agrees to pay as outlined herein.
3.2. All payment obligations are non-cancelable, and payments made are non-refundable.
3.3. Fees are billed monthly (unless otherwise specified in the signed Order Form), starting from either:
Payments must be made in the currency specified in the Order Form, in full and cleared funds, without set-off, deduction, or withholding (unless required by law), within ten (10) business days of the Payment Due Date. The Customer must provide Otter with accurate billing and contact details.
3.4. If payment is not made as outlined in Clause 3.3, Otter reserves the right to suspend the Customer’s access to the Software and API.
3.5. All fees under the Agreement exclude value-added tax (VAT) or other applicable taxes, which the Customer is responsible for paying.
3.6. If the Customer believes an invoice is incorrect, they must contact Otter within five (5) days of receiving the invoice to request an adjustment. Inquiries should be directed to the contact email.
3.7. Otter reserves the right to update fees or introduce new charges with prior notice. New fees will apply to existing Customers only upon renewal of their current term.
4.1. To use the Software, the Customer must register for an account by providing necessary information and creating a username and password. The Customer agrees to supply accurate, current, and complete information during registration and to update this information as needed to ensure its accuracy. Otter reserves the right to suspend or terminate the Customer’s account if the information provided during or after registration is found to be inaccurate, outdated, or incomplete. The Customer is responsible for:
The Customer must notify Otter immediately of any unauthorized account access or usage.
5.1. The Customer acknowledges that Otter provides the Software “as is,” without any warranties, either express or implied. Otter explicitly disclaims any warranties, including but not limited to:
5.2. Otter is not responsible for delays, delivery failures, or damages resulting from data transfer over communication networks or facilities not owned or controlled by Otter. The Customer recognizes the inherent risks and limitations associated with such communications.
5.3. In case of loss or damage to Customer Content, Otter’s sole obligation is to make reasonable commercial efforts to restore the lost or damaged content from the most recent backup.
6.1. Subject to clause 6.2, Otter agrees to defend, at its own expense, any third-party claims alleging that the Software infringes on third-party Intellectual Property Rights (“Infringement Claim”) and indemnify the Customer for direct costs and damages awarded by a competent court or agreed in settlement. This obligation applies only if:
The Customer may not settle any Infringement Claim without Otter’s prior written consent.
6.2. Otter is not liable for any Infringement Claim resulting from:
This section provides the Customer’s sole remedy and Otter’s full liability regarding infringement claims.
6.3. The Customer agrees to indemnify and hold Otter and its officers, employees, agents, and affiliates harmless from any third-party claims, liabilities, or expenses (including court costs and attorneys’ fees) arising from:
7.1. Subject to clauses 7.2, 7.3, and 7.4, the total aggregate liability of each Party, regardless of the legal basis (contract, tort, negligence, statutory breach, strict liability, or otherwise), related to or arising from the Agreement, shall not exceed the total amount paid or payable to Otter under the Agreement in the 12 months preceding the first event giving rise to the claim. The presence of multiple claims does not increase this cap.
7.2. Except as noted in clauses 7.3 and 7.4, neither Party will be liable for:
7.3. The limitations and exclusions in this Section 7 do not apply to:
7.4. Nothing in the Agreement limits or excludes liability that cannot be legally excluded or limited.
7.5. For claims involving future, contingent, or unquantifiable liability, neither Party is obligated to make payment until the liability becomes actual or quantifiable. Additionally, neither Party is entitled to reimbursement or restitution more than once for the same loss or damage related to a particular claim.
8.1. A Party receiving confidential information (the “Receiving Party”) from the other Party (the “Disclosing Party”) agrees to keep all such information confidential and protect it with at least the same level of care as it uses for its own confidential information, which must not be less than reasonable care.
8.2. The Receiving Party shall only use the Confidential Information as required under the Agreement and shall not disclose it to anyone except:
8.3. Either Party may disclose Confidential Information to government authorities if such disclosure is:
8.4. “Confidential Information” refers to business or proprietary information of a confidential nature, including trade secrets, pricing, software, source code, and technical or business information disclosed by the Disclosing Party. However, Confidential Information does not include information that:
8.5. These confidentiality obligations apply during the Agreement’s term and for three (3) years after its termination or expiration.
9.1. The Agreement becomes effective on the date the Customer signs the Order Form referencing the Agreement (“Effective Date”). It will initially remain in effect for one (1) month or any other period specified in the Order Form (“Initial Term”).
9.2. Each Order Form will automatically renew for the same term (“Renewal Term,” collectively with the Initial Term, the “Term”) unless either Party provides notice of non-renewal at least sixty (60) days before the end of the Initial or current Renewal Term (thirty (30) days for monthly agreements). Notice via email suffices for this purpose.
9.3. There is no limit to the number of automatic renewals under the Agreement.
10.1. Either Party may terminate the Agreement immediately by written notice if the other Party:
10.2. Otter may terminate or suspend the Customer’s access to the Software without prior notice if:
Otter retains the right to pursue other remedies for the applicable breach.
10.3. Upon termination of the Agreement:
10.4. Payment Obligations Upon Termination:
10.5. Termination or expiration of the Agreement does not affect accrued rights, remedies, or liabilities of the Parties up to the termination date, including the right to claim damages for breaches existing at or before termination.
11.1. This Agreement is governed by the laws of the State of Delaware, without regard to conflict of laws provisions.
11.2. Any dispute or claim arising from or related to this Agreement will be resolved through arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The arbitration will follow the Centre’s International Expedited Procedures, regardless of the dispute’s amount. The arbitration will take place in Delaware, USA, but oral hearings, if necessary, will be conducted via video, audio, or electronic means. The arbitration language will be English. Neither Party nor its representatives may disclose the arbitration’s existence, content, or results without prior written consent unless required by law.
12.1. Entire Agreement. This Agreement, along with any signed Order Forms, constitutes the entire agreement between the Parties regarding the Software, superseding prior agreements or communications. If there is a conflict between these Terms and a signed Order Form, the Order Form prevails.
12.2. Modifications. Otter reserves the right to modify these Terms. The modification date will be updated, and Otter will provide reasonable notice before material changes take effect, either via email or another suitable method. Continued use of the Software after the effective date constitutes acceptance of the revised Terms at the next renewal period or upon signing a new Order Form.
12.3. Use of Customer’s Logo in Marketing. By using the Software, the Customer consents to Otter using their company name and logo (including trademarks) in marketing materials and on the Otter website. The Customer also agrees to participate in a case study for Otter’s marketing efforts.
12.4. Waiver. Waivers of any provision must be in writing and do not imply waivers of other provisions.
12.5. Third-Party Rights. This Agreement grants no rights or benefits to third parties except successors and permitted assigns of the Parties, unless explicitly stated otherwise.
12.6. Assignment. The Customer may not assign the Agreement without Otter’s prior written consent. Otter may freely assign its rights under the Agreement. This Agreement binds and benefits the Parties and their respective successors and assigns.
12.7. Severability. If any provision is found unlawful or unenforceable, it will be modified or removed as necessary, leaving the rest of the Agreement valid and enforceable.
12.8. Notice. All notices or communications will be delivered via email to the addresses listed in the Order Form. Notices sent via email are deemed received upon transmission. Otter may also provide notices by posting on its website or within the Customer’s account.
12.9. Force Majeure. Neither Party will be liable for delays or failure to perform due to events beyond their reasonable control. The affected Party must notify the other and resume performance as soon as feasible.
12.10. Independent Contractors. This Agreement does not create a joint venture, partnership, agency, or employment relationship between the Parties.