In a Partnership Agreement between OpenTech Alliance, Inc. (“OpenTech”) with a place of business at 2501 W. Dunlap Ave., Suite 255, Phoenix, AZ 85021 and BLUE EYE CORPORATION., a Delaware corporation, with its principal place of business at 423 W 300 S, Suite 290, Salt Lake City, UT 84101 (“Blue Eye”) the two parties, collectively known as (the “Service Providers”), will work together to supply the Hardware and the Monitoring Services (the “System”).
THIS REMOTE MONITORING SERVICE AGREEMENT (including any Exhibits hereto, this (“Agreement”) is entered into by and between Service Providers and you the “Customer”, as defined in the Service Order Form (“Order”) signed with OpenTech.
A. Customer desires that Service Providers remotely assist Customer to install the remote monitoring system described on the Order at the Facility Address on the Order (the “Premises”) and perform certain Monitoring Services (as defined below) with respect to the Premises on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises, and other good and valuable consideration received and to be received, Customer and Service Providers, intending to be legally bound, agree as follows:
1. Certain Definitions.
(a) “Affiliate” means an entity in which a Party owns in excess of fifty percent (50%), directly or indirectly, of such entity’s voting capital stock.
(b) “Fees” means any and all fees payable by Customer to OpenTech pursuant to Order.
(c) “Party(ies)” means, individually or collectively, Service Providers and/or Customer and any permitted successors and assigns.
(d) “Term” shall have the meaning set forth in the Order.
2. License to Use System. Service Providers hereby grant to Customer a nonexclusive, nontransferable and non-sub licensable personal license to use the System solely for internal business purposes in accordance with, and during the Term of, this Agreement. Customer acknowledges that if it did not pay any Hardware fees as part of the Order that Service Providers retain all ownership, right, title and interest in and to the System and that Customer is merely leasing the System from Service Providers during the Term.
i. 5 Mb minimum upload speed
ii. 10 Mb upload speed preferred
iii. Must have no data caps
d) Service Providers expressly assume no liability for delay in installation of the System due to strikes, riots, floods, storms, earthquakes, fires, power failures, insurrection, acts of God, shortages of labor or materials, or any other cause beyond the control of Service Providers. e)Service Providers shall not be liable for, and assume no responsibility for any losses arising from: (i) water intrusion, mold, fungi, wet or dry rot or bacteria, or (ii) the location of cameras or the design of Customer’s security systems.
(b) Service Providers shall endeavor to notify the proper authorities or other persons in accordance with information provided in the Order. Service Providers do not represent or warrant that transmissions to or from the Premises or the System may not be interrupted, circumvented, or compromised. Service Providers do not assume any liability for delay or operation of the phone or internet service, cellular and/or radio frequency, or other potential methods, for reasons including but not limited to acts of God, strikes, restrictions imposed by government agencies, war, riot, terrorism, or any other conditions beyond Service Providers control. CUSTOMER ACKNOWLEDGES THAT IF THE INTERNET, TELEPHONE OR OTHER TRANSMISSION SERVICE IS INTERRUPTED, DISCONNECTED, MODIFIED, OR NOT WORKING FOR ANY REASON, THE SYSTEM MAY NOT FUNCTION AND TRANSMISSIONS MAY NOT BE MADE TO SERVICE PROVIDERS OR ITS SUBCONTRACTORS. Customer acknowledges that Service Providers shall not be liable for the activation, interruption, operation, or non-operation of internet, telephone or cellular transmission equipment or service, since Service Providers have no control or supervision of any such equipment or service.
5. Use of the System; Maintenance by Service Providers. Customer promises to maintain the System in proper working order at all times and not to tamper with, disturb, move (even in connection with remodeling), injure, remove, or otherwise interfere with the System or allow the same to be done by any third party. Service Providers shall not be obligated to furnish maintenance or repair services nor be liable under this Agreement for repairs to, replacement of, or additions to the System made necessary by (i) improper use; (ii) theft; (iii) natural disasters, such as hurricane, lightning, flood, fire or earthquakes; (iv) strikes, riots, terrorism, sabotage, acts of war; (v)repairs,changes,modifications,maintenance, relocation or re-installation of the System by persons other than Service Providers personnel or without Service Providers supervision; (vi) unusual shock, electrical damage or a corrosive atmosphere harmful to the System’s electrical circuitry; (vii) non-Service Providers or non-certified technician supplied equipment or service calls necessitated thereby; (viii) failure by Customer to maintain the site specifications recommended by Service Providers; (ix) trouble in a communication line; (x) causes other than ordinary, proper use of the System by Customer; or (xi) causes outside of Service Providers control. In the event an original part or component is no longer available, Service Providers may substitute a similar product provided such a similar product is then available.
(a) Customer agrees to pay all directly and indirectly imposed sales tax or other taxes required in connection with the System and Monitoring Services, including the use, monitoring, and servicing/repair of the Monitoring Services, purchase of additional equipment, charges made by any internet service provider or other utility for service of the network servicing the System, any increase in electricity charges, and any building permit or other fees required under any ordinances or laws in order to monitor and/or maintain the Monitoring Services at the Premises. Service Providers may pass these charges through to Customer at any time.
(b) Expenses and penalties, including, without limitation, false alarm fees, assessed against Customer and/or Service Providers by any court or local, state or federal governmental agency shall be the sole responsibility of Customer and shall be paid immediately. If Service Providers receive an excessive number of false alarms (to be determined in its sole discretion) Service Providers may terminate this Agreement immediately upon written notice to Customer. If the Response Protocol set forth on the Order involves contacting municipal or other public service authorities, then Customer shall be responsible for any “false alarms.” In addition to all other legal remedies set forth in this Agreement, Service Providers may, at its option, be excused from further performance if it determines, in its sole discretion, that Customer caused any such “false alarm.” Service Providers excuse from performance shall not affect its right to recover damages from Customer. In the event a fine, penalty, or fee is assessed against Service Providers by a governmental or municipal agency in connection with the System or the Monitoring Services, Customer agrees to promptly reimburse Service Providers for the same. Customer represents that Customer fully under stands that the System, because of its sensitivity and nature, is subject to the influence of external events which are not within the control of Service Providers and which may cause the Service Providers to follow the Response Protocol on the Order even though no event has occurred which threatens the security of the Premises. Such occurrences shall not be construed as improper operation of the System nor as malfunction thereof, nor shall any or all of such occurrences excuse any of the obligations of Customer as set forth in this Agreement.
(e) Customer acknowledges that Service Providers specifically disclaims any responsibility for services associated with notifying or dispatching paramedics, doctors and other medical personnel and/or ambulance services and if there are any charges incurred as a result of such notification, said charges shall be the responsibility of Customer, whether or not Customer requested such notice and whether or not such entities were correctly or incorrectly notified by Service Providers
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SERVICE PROVIDERS NOR ITS SUBCONTRACTORS, ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, FOR PURPOSES OF THIS SECTION 7, “SERVICE PROVIDERS”), IS AN INSURER. INSURANCE, IF ANY, SHALL BE OBTAINED BY CUSTOMER. THE AMOUNTS PAYABLE TO SERVICE PROVIDERS HEREUNDER ARE BASED UPON THE VALUE OF THE MONITORING SERVICES AND ARE NOT RELATED TO THE VALUE OF CUSTOMER’S PROPERTY OR PROPERTY OF OTHERS LOCATED IN CUSTOMER’S PREMISES. CUSTOMER AGREES TO LOOK EXCLUSIVELY TO CUSTOMER’S INSURER TO RECOVER FOR INJURY OR DAMAGE IN THE EVENT OF ANY LOSS OR INJURY AND RELEASES AND WAIVES, ON BEHALF OF ITSELF AND ITS INSURER, ALL RIGHT OF RECOVERY AGAINST SERVICE PROVIDERS ARISING BY WAY OF SUBROGATION. SERVICE PROVIDERS DOES NOT MAKE ANY GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE MONITORING SERVICES SUPPLIED WILL AVERT, DETECT OR PREVENT FIRE, BURGLARY, PROPERTY DAMAGE, BODILY INJURY OR OTHER OCCURRENCES THE MONITORING SERVICES ARE DESIGNED TO DETECT. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH MAY PROXIMATELY RESULT FROM FAILURE ON THE PART OF SERVICE PROVIDERS TO PERFORM ANY OF THEIR OBLIGATIONS HEREUNDER. CUSTOMER FURTHER AGREES THAT IF SERVICE PROVIDERS SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE, OR INJURY DUE TO A FAILURE OF SYSTEM OR SERVICES IN ANY RESPECT, SERVICE PROVIDERS LIABILITY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID BY CUSTOMER WITH RESPECT TO MONITORING SERVICES PROVIDED BY SERVICE PROVIDERS DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY SUCH LOSS. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ANY LOSS, DAMAGE, OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, WHICH RESULTS DIRECTLY OR INDIRECTLY TO ANY PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM THE NEGLIGENCE, ACTIVE, PASSIVE OR OTHERWISE, STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER ALLEGED FAULT ON THE PART OF SERVICE PROVIDERS OR ITS SUBCONTRACTORS.
(b) Either Party may terminate this Agreement for a material breach by the other Party of its obligations hereunder if such continues uncured for a period of thirty (30) days subsequent to written notification of breach from the non-breaching Party to the Party in breach (or, if able to be cured and the cure reasonably takes longer than thirty (30) days, within such longer period as such cure reasonably requires, provided that the breaching party promptly undertakes action to cure and diligently pursues the same until cured). Either Party may also terminate this Agreement immediately upon written notice to the other Party in the event that the other Party: (i) makes a general assignment for the benefit of creditors; (ii) appoints or has appointed a receiver to take charge of all or part of its property; (iii) admits in writing its inability to pay its debts generally as they mature; (iv) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it; (v) otherwise substantially ceases its business operations; (vi) takes any action for the purpose of effecting any of the foregoing; or (vii) commences proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Party or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Party or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement.
(c) Upon any expiration or termination of this Agreement: (i) Service Providers shall immediately cease providing the Monitoring Services; (ii) Customer shall immediately cease using the System; and (iii) Customer will immediately pay any and all outstanding Fees and charges owed to Service Providers. Notwithstanding the expiration or termination of this Agreement or any renewal period hereof, it is acknowledged that those rights and obligations that by their nature are intended to survive such expiration or earlier termination will survive.
(d) Upon any expiration or termination of this Agreement, if Customer did not pay for the Hardware Customer hereby authorizes and empowers Service Providers to enter the Premises and to remove the System and all other equipment provided or return the equipment in good working order to Service Providers. Removal of the System and other equipment shall not be deemed a waiver of Service Providers right to damages or to collect any payments due hereunder, and Service Providers shall continue to have the right to enforce any legal remedy or right available to Service Providers. Further, Service Providers shall be in no way obligated to restore the Premises to its original condition or redecorate same upon the removal of the System in connection with the termination or expiration of this Agreement.