INSOMNIAC Live! Terms and Conditions
This Order Agreement (“Agreement”) is between Customer and OpenTech Alliance, Inc. (“OpenTech”) located at 2501 W. Dunlap Ave. Suite 255, Phoenix, AZ 85021.
Subject to the terms and conditions of this Agreement and Customer’s payment of all fees, during the term of this Agreement, OpenTech grants Customer a non-exclusive, non-transferable, limited license to access and use any OpenTech software, including any embedded third party technology, and related updates and features made accessible to Customer by OpenTech (the “Software”), the call center services (the “Services”), and related materials (collectively the “Product”) described in this Agreement solely for Customer’s self-storage business in the territories set forth in this Agreement. All rights not expressly granted to Customer hereunder are expressly reserved by OpenTech. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights, and other intellectual property and proprietary rights in the Products and all improvements, enhancements, or modifications thereto shall remain the sole and exclusive property of OpenTech. Customer shall not (nor shall it permit any third party to): (i) copy or manufacture the Products or any portion thereof or otherwise use the Products to develop a competing product or service; (ii) translate, modify, adapt, enhance, extend, decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Products or any portion thereof or remove any proprietary, disclaimer, or warning notice thereon; or (iii) use or allow the transfer, transmission, export, or re-export of the Products or any portion thereof outside the territories set forth in this Agreement or otherwise in violation of applicable law. Customer may not assign, transfer, or delegate its rights or obligations hereunder without the prior written consent of OpenTech.
The parties agree that information designated by a party as confidential or reasonably understood by the parties to be confidential, is confidential and proprietary to the disclosing party, and each party agrees to keep such information strictly confidential until the information becomes public knowledge without breach of this Agreement or similar confidentiality requirements. The Products are OpenTech’s confidential information.
TERMS OF SERVICE
The Products are an annual commitment commencing on the first day of Services or use of Software and will automatically renew annually unless either Customer or OpenTech gives written notice to the other party of its intention not to renew at least 60 days prior to expiration of the then current term if Customer has up to ten facilities to be terminated, 90 days if Customer has between 10 and 50 facilities to be terminated, and 120 days if Customer has 50 or more facilities to be terminated. OpenTech will provide Customer at least 60 days prior to expiration of the current term, written notice of OpenTech’s election not to renew or any fee changes. Customer may elect to terminate this Agreement in part with respect to certain Customer facilities, provided, however that OpenTech’s then-current pricing will apply thereafter to Customer’s remaining facilities. Upon termination, Customer shall disconnect its facilities from the Products. In the event Customer fails to do so, Customer agrees that any calls handled by OpenTech after termination will be charged to Customer at a rate of $5 per call.
The annual Services fee will be invoiced by email monthly in advance; if Customer requires that the invoice be sent by USPS, then a $5 service fee will be added to each invoice. The first month’s Services fee will be prorated and due immediately following the completion of STC. Should any invoice for Services ordered be outstanding for over sixty (60) days, OpenTech may terminate the Agreement immediately upon notice to Customer.
100% SATISFACTION GUARANTEE
If Customer is not 100% satisfied that Services provided to a specific facility during a specific month comply with this Agreement, Customer shall document the basis for the dissatisfaction in writing on the immediately following month’s invoice for that facility along with the fee credit Customer is electing to deduct from its payment to OpenTech (up to 100% of the fees due for the applicable facility) due to the level of Services provided during the prior month for that facility. Customer’s election to deduct a Services credit from the following month’s invoice shall be Customer’s sole and exclusive remedy and OpenTech’s sole liability with respect to Customer’s dissatisfaction with Products under this Agreement. In the event that Customer, pursuant to the foregoing, pays less than the full amount in three (3) or more months during the then-current term of this Agreement, either party may elect to terminate the Agreement immediately upon notice to the other.
WARRANTY AND LIABILITY LIMITATIONS
THE FOREGOING SATISFACTION GUARANTEE IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND
TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPENTECH OR ITS REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF OPENTECH’S OBLIGATIONS HEREUNDER. OPENTECH SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES, INCLUDING EXEMPLARY AND PUNITIVE, DIRECTLY OR INDIRECTLY ARISING FROM THIS AGREEMENT, THE PRODUCTS, OR THE PROVISION OF SERVICES BY OPENTECH, OR FROM ANY OTHER CAUSE WITH RESPECT TO THE PRODUCTS, SERVICES, OR THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY IN TORT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY. OPENTECH’S TOTAL LIABILITY HEREUNDER TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE PRODUCTS IN ANY CASE IS EXPRESSLY LIMITED, AT OPENTECH’S ELECTION, TO REPAIR OR REPLACEMENT OF PRODUCTS NOT COMPLYING WITH THIS AGREEMENT, OR TO THE REPAYMENT OF, OR CREDITING CUSTOMER WITH, AN AMOUNT EQUAL TO THE FEES FOR SUCH PRODUCTS OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. ANY CLAIM BY CUSTOMER WITH REFERENCE TO THE PRODUCTS OR SERVICES SOLD HEREUNDER, FOR ANY CAUSE, SHALL BE DEEMED WAIVED BY CUSTOMER UNLESS SUBMITTED TO OPENTECH IN WRITING WITHIN THIRTY (30) DAYS FROM THE DATE CUSTOMER DISCOVERED, OR SHOULD HAVE DISCOVERED, ANY CLAIMED BREACH. THIS SECTION WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON.
OpenTech shall have no liability or responsibility with respect to any dispute between Customer and its clients, including any dispute arising out of, or related to, use of or access to the Products by Customer’s clients. Customer agrees to indemnify, defend, and hold harmless OpenTech from and against any and all claims, actions, proceedings, liabilities, damages, losses, costs or expenses, including attorneys’ fees arising from Customer’s clients, the acts or omissions of Customer, or Customer’s use of the Products.
Consistent with any law or regulation applicable to the Products and OpenTech’s then current practices and procedures, OpenTech will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of any Customer data accessible to OpenTech as a result of this Agreement. OpenTech will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer data. THE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT OPENTECH DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEB SITES, COMPUTERS, OR NETWORKS AND OPENTECH IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
This Agreement shall be deemed to have been executed and delivered in Phoenix, Arizona. This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by the internal laws of the State of Arizona, without giving effect to the principles of conflicts of law thereof. Any lawsuit arising from or related to this Agreement shall be brought in a state or federal court located in Maricopa County, Arizona, and both OpenTech and Customer hereby consent to the jurisdiction of such courts.
ENTIRE AGREEMENT AND MODIFICATIONS
These Terms and Conditions of this Agreement and any exhibits attached hereto represent the entire agreement between the parties with respect to the Products. No alteration or modifications of this Agreement will be valid unless made in writing and signed by the parties. No attachment, supplement, or exhibit to this Agreement shall be valid unless initialed by an authorized signatory of OpenTech. No modification of any of these terms will be affected by OpenTech’s provision of Products following receipt of Customer’s purchase order, shipping request, or similar forms containing terms and conditions conflicting or inconsistent with the terms herein.
This Exhibit A (ISSN Member Agreement) is a part of and incorporated into the Agreement between Network Member (as defined below) and OpenTech. Network Member hereby agrees to and accepts the following terms and conditions of OpenTech as a prequalification to joining the INSOMNIAC Self Storage Network (“ISSN”). CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT WITHOUT AN ISSN MEMBERSHIP, THE OPENTECH PRODUCTS AND SERVICES WILL NOT FUNCTION AND CANNOT BE PROVIDED.
Data is the information, data, content, and other material, including unit inventory, prices, and customer information stored in the Network Member’s property management system (“PMS”) that is uploaded to or otherwise accessible through the OpenTech Products and Services.
ISSN is an online marketplace that provides real-time connectivity between Network Member’s PMS and OpenTech for the purpose of accessing the Data and providing OpenTech Products and Services.
Network Member is a self-storage facility owner, operator, or management company that is a party to the Agreement with OpenTech. For the purposes of this Exhibit A (ISSN Member Agreement) Customer is the Network Member.
ACCESS TO INFORMATION
Network Member hereby grants OpenTech a non-exclusive, world-wide, royalty-free license to access and use the Data for purposes of performing this Agreement and providing the OpenTech Products and Services.
Network Member will provide OpenTech with information related to which Network Member facilities will be connected to ISSN in accordance with OpenTech requirements. Network Member agrees that OpenTech shall have no liability, obligation, or responsibility for the content, accuracy, availability, integrity, or legality of the Data accessed or obtained from Network Member, including through Network Member’s PMS. Network Member agrees to allow access to Network Member’s systems by representatives of OpenTech as necessary to establish and maintain (as may be required from time to time) Network Member’s connectivity to ISSN.
Tenant Data made available by Customer to OpenTech to enable OpenTech to provide and improve OpenTech Products and Services under this Agreement shall be kept strictly confidential by OpenTech and shall not be disclosed to any third party except as: 1. required by law, 2. necessary for OpenTech to provide and improve its Products and Services, 3. with Customer’s prior approval, or 4. in connection with OpenTech aggregating data for use in industry reports which does not include personal identifying information.
OpenTech shall make Data available only to its personnel, affiliates, agents, subcontractors, and information system vendors where access is essential to enable them to perform their obligations under this Agreement. The rights and obligations of OpenTech in performing this Agreement may be, in whole or in part, exercised or fulfilled by OpenTech affiliates, agents, subcontractors, and information system vendors.