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”).
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.
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.
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.