- Definitions "OpenPath Website" means OpenPath's website located at https://www.OpenPath.com, or any other related website designated in writing by OpenPath from time to time.
"Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, the terms and conditions of this Agreement, the Service, the business and marketing plans, technology, technical information, product designs and business processes of OpenPath shall be considered the Confidential Information of OpenPath. . Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
"Customer Data" means all electronic data, records or information submitted by You to the Service
"Documentation" means any online documentation or user guides for the Service published by OpenPath and supplied to You by OpenPath,as updated from time to time in OpenPath's sole discretion, made available online by OpenPath. The Documentation includes, without limitation, the Order Form.
"Force Majeure Event" means any circumstance or occurrence beyond the reasonable control of OpenPath, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, or floods.
"Hardware" means the access control unit(s), door reader(s), and or other physical components purchased pursuant to this Agreement by which You will access and use the Service.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Order Form" means the form attached hereto, if this Agreement is executed by signature, which specifies the method of Installation, the Subscription Term, and the Hardware and Services to be provided. If this Agreement is executed electronically, the Order Form means the webpage(s) on which the method of Installation, the Subscription Term, the Hardware and Services to be provided are specified. The Order Form is hereby incorporated by reference.
"Scheduled Maintenance" means any period during which the Service is unavailable for maintenance, including the implementation of any updates, enhancements, patches, fixes, or error corrections.
"Service" means the online, Web-based hosted software service made available by OpenPath via the OpenPath Website, and OpenPath smartphone applications, as described by the Documentation.
"Subscription Term" means Your initial subscription term for the Service and any renewals or extensions agreed to by OpenPath or an authorized OpenPath reseller.
"System" means the Hardware and the Service.
"Users" means individuals who are authorized to use the Service and who have been supplied user identifications and passwords. Users may include but are not limited to Your employees, consultants, contractors and agents.
Payment for Service OpenPath will make the Service available to You and Your Users pursuant to this Agreement during the Subscription Term. You agree to pay the relevant amounts indicated on the Order Form for the Service and You further agree that ) non-payment of any amount owed to OpenPath relating to this Agreement will constitute a basis for OpenPath's termination of this Agreement. There are separate fees for Hardware (and the delivery of such Hardware), Installation (if OpenPath or a Certified Installer is performing the Installation) and for access to the Service ("Service Fees") indicated on the Order Form. Service Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for Services that start in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. If OpenPath does not receive fees by the due date, then such charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Taxes" means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party's net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under this Agreement or under any order form or similar document ancillary to or referenced by this Agreement, shall not include Taxes except as otherwise provided herein. You shall be responsible for all of such Taxes. If, however, OpenPath has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which You are responsible under this section, You shall promptly pay the Taxes invoiced by OpenPath unless You have furnished OpenPath with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. You shall comply with all applicable tax laws and regulations. You hereby agree to indemnify OpenPath for any Taxes and related costs paid or payable by OpenPath attributable to Taxes that would have been your responsibility under this section if invoiced to you. You shall promptly pay or reimburse OpenPath for all costs and damages related to any liability incurred by OpenPath as a result of your non-compliance or delay with its responsibilities herein. Your obligations related to Taxes or indemnification regarding the same shall survive the termination or expiration of this Agreement.
Use of the Service Subject to the Terms of this Agreement, OpenPath grants you a limited, non-exclusive license to access and use the Services for your internal business purposes in a manner consistent with the Documentation. OpenPath will use commercially reasonable efforts to: (i) maintain the security and integrity of the Service and (ii) make the Service available 24 hours a day, 7 days a week, except for: (a) Scheduled Maintenance and (b) downtime caused by a Force Majeure Event. OpenPath will use commercially reasonable efforts to provide at least 24 hour notice of Scheduled Maintenance, which notice will generally be provided via posting on the OpenPath website or via login to the Service. You are responsible for Your Users' compliance with this Agreement and the Documentation. You will: (i) have sole responsibility for the integrity, legality and appropriateness of all Customer Data and will ensure that all instructions given to OpenPath in respect of the Customer Data will be in compliance with applicable data protection laws; (ii) use best efforts to prevent unauthorized access to, or use of, the Service, and notify OpenPath promptly following Your discovery of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service, including without limitation all applicable data protection laws and regulations. You may use the Service solely for Your internal business purposes as contemplated by this Agreement and the Documentation and You may not: (i) license, resell, transfer, assign, distribute or otherwise commercially make the Service available to any third party, other than to Users acting on your behalf as contemplated by this Agreement; (ii) transmit or store infringing, threatening, libelous, or otherwise unlawful material, including material that is harmful to children or violates third-party privacy rights; (iii) send or store Malicious Code; (iv) intentionally interfere with or disrupt the integrity or performance of the Service; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. You acknowledge and agree that Your use of the Service shall at all time be consistent with the Acceptable Use Policy. OpenPath reserves the right to change or discontinue the Service or change or remove features or functionality of the Service from time to time. OpenPath will notify You in writing of any material change to or discontinuation of the Service.
Installation You, per the Order Form, may opt for either OpenPath or a certified OpenPath installer (a "Certified Installer") to install the Hardware at Your premises. In the event that You opt to have the Hardware so installed, You agree to pay the "Installation Fees" indicated in the Order Form pursuant to the terms of this Agreement. In the event that You opt to have the Hardware installed by OpenPath or a Certified Installer, You agree to allow OpenPath or the Certified Installer reasonable access to Your Premises to allow for the necessary inspections and test and for the purposes of performing the work associated with such installation. OpenPath's Installation Fees for installation do not contemplate work in any areas that contain hazardous materials, including, without limit, asbestos. In the event any such hazardous materials are discovered in or on the premises in which OpenPath or the Certified Installer is to perform installation services under this Agreement, OpenPath or the Certified Installer shall have the right to cease work immediately in the area affected until such materials are removed or rendered harmless. Any additional expenses incurred by OpenPath (or the Certified Installer) as a result of the discovery or presence of hazardous material shall be your responsibility and shall be paid promptly upon billing or, at OpenPath's option, may be added to the purchase price.
You may also opt to install the Hardware yourself or have the Hardware installed by a third party in accordance with the Documentation.
IN ANY EVENT, REGARDLESS OF THE METHOD OF INSTALLATION, OPENPATH WILL NOT BE LIABLE IN THE EVENT OF A FAILURE OF THE SYSTEM OR SERVICE ARISING FROM OR RELATED TO THE INSTALLATION OF THE HARDWARE OR RELATED TO OR ARISING FROM OTHER ISSUES WITH YOUR PREMISES.
Risk of theft, damage or other loss of the Hardware, or any part of the same, passes to you upon installation (in the event that OpenPath or a Certified Installer handles installation) or upon shipment (in the event that you or a third party are handling installation).
Proprietary Rights Subject to the limited rights expressly granted hereunder, OpenPath and its licensors reserve all of OpenPath's and its licensors' rights, title and interest in and to the System and all portions thereof, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You will not: (i) modify, copy or create derivative works based on theSystem or any portion thereof; (ii) frame or mirror any content forming part of the System; (iii) reverse engineer the System or any portion thereof (to the extent such restriction is permitted by law); or (iv) access the System in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service. As between OpenPath and You, OpenPath acknowledges and agrees that You exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You grant OpenPath and its Affiliates a worldwide license to host, have hosted, copy, transmit, access, use, modify, and display Your Customer Data as necessary for OpenPath to provide the Service in accordance with this Agreement. OpenPath may monitor your use of the System and use data and information related to such use in an aggregate and anonymous manner, including without limitation to compile statistical and performance information related to the provision and operation of the System ("Aggregated Statistics"). As between You and OpenPath, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by OpenPath. You acknowledge that OpenPath will be compiling Aggregated Statistics based on your use of the System and You agree that OpenPath may (a) make such Aggregated Statistics publicly available, and (b) use such information for purposes of data gathering, analysis, service enhancement, and marketing.
Confidentiality The party receiving Confidential Information (the "Receiving Party") will not disclose or use any Confidential Information of the party disclosing such information (the "Disclosing Party") for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission or as required by law. Both parties agree to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind, but in no event shall such Confidential Information be treated with less than reasonable care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, You acknowledge and agree that OpenPath may anonymize data You upload to and/or store via the Service, including without limitation the Customer Data, aggregate such anonymized data with anonymized data of other users of the Service, and use or disclose such data to third-party service providers, including without limitation the right to use such data for the purposes of improving or modifying the Service, or sell such anonymized data to third parties. You agree that OpenPath may use such anonymized data with no compensation to you and that their rights to such data survive any termination or expiration of this Agreement. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Data Retention During the Subscription Term, You shall be able to access control event data stored via the Service within the Service user interface for one (1) year from the date such data is recorded unless stored for longer than one (1) year as an additional purchased service. Data stored via the Service within terminated Service accounts (subject to Section 11 below) and data that is older than one (1) year in active Service accounts is subject to deletion.
Limited Warranties & Disclaimers OpenPath is not an insurer under this Agreement. OpenPath represents and warrants that the System will perform substantially in accordance with the Documentation. You represent and warrant that the collection and processing of Your Customer Data as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations. OpenPath agrees to correct, by repair or replacement of the defective part or parts, any defect or defects in workmanship or materials in the System which may develop under proper or normal use during the period of one (1) year from the date of installation of the Hardware. During such period OpenPath will not be obligated under the Agreement to make repairs or replacements necessitated by reason of negligence or misuse of the equipment by You or others or by reason of any other cause beyond OpenPath's control, except ordinary wear and tear. IN THE EVENT YOU OR ANY OF YOUR AGENTS MODIFIES OR ATTEMPTS TO MODIFY THE SYSTEM WITHOUT THE EXPRESS WRITTEN AUTHORITY OF OPENPATH, THE FOREGOING WARRANTIES SHALL BE AND BECOME NULL AND VOID. OpenPath shall have no obligation at its own expense to make safety tests, modifications, changes or replacements, nor to install new attachments to the system which may be recommended or directed by insurance companies, or government, state, municipal, or other authorities. It is understood that the obligation to repair or replace equipment provided herein applies only to the System and Hardware covered by this Agreement. Repair or replacement of parts of the premises that may be connected to or monitored by the System, but are not maintained by OpenPath as Hardware elements of the System, including, but not limited to, duct work, boiler shell and tubes, unit cabinets, boiler refractory material, electrical wiring, communications service provider equipment, elevators, elevator equipment, doors, door closers, building fire alarm equipment, hydraulic and pneumatic piping, structural supports, air conditioning equipment, including chillers, and the like, is not included under this limited warranty. OpenPath''s warranty does not cover any malfunction caused in whole or in part by unauthorized use of the System or by any computer virus or worm. If an emergency service call is made at your request and inspection does not reveal any defect for which OpenPath is liable, You shall be liable for OpenPath's regular charges prevailing for such service. The System is not designed for or intended to provide security for Your premises, its contents, or its occupants. OpenPath. Accordingly, You agree that OpenPath shall not be liable for any damages, including special, indirect, incidental or consequential damages arising from or claimed to have arisen from, any unauthorized entry, provided that, in the event of any failure of the System during an ongoing Subscription Term, OpenPath shall make corrections to the System.
THE ABOVE LIMITED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY OPENPATH REGARDING THE SERVICE. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE SERVICE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OPENPATH DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE WILL BE ERROR-FREE. OPENPATH WILL HAVE NO LIABILITY UNDER THIS AGREEMENT TO THE EXTENT THAT IT IS DELAYED, PREVENTED OR HINDERED IN PERFORMING ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT AS A RESULT OF A FORCE MAJUERE EVENT.
Disclaimer of Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENPATH OR ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SIMILAR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA, PERSONAL INJURY AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF OPENPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. IN NO CASE WILL OPENPATH'S OR ITS LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES THAT YOU PAID FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 9 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification You will defend, indemnify and hold OpenPath and its owners, directors, managers, officers, employees and agents (each an "OpenPath Indemnified Party") harmless against any loss, liability, damage, cost or expense (including reasonable attorneys' fees) suffered or incurred by any OpenPath Indemnified Party in connection with claims, demands, suits, or proceedings made or brought against any OpenPath Indemnified Party by a third party alleging (i) a breach by You or Your Users of Your obligations under applicable laws, including, without limitation, applicable data protection laws and regulations; or (ii) that the Customer Data, or Yours or Your Users' use of the Service in breach of this Agreement, infringes or breaches the intellectual property rights, of, or has otherwise harmed, a third party; or (iii) a breach by You or Your Users of Section 5 (Confidentiality).
Term & Termination Subject to the terms and conditions of this Agreement, the Subscription Term will begin on the start date of any applicable Order Form between You and OpenPath, and unless sooner terminated for cause as provided below, will continue for the period set forth on the Order Form, and will automatically renew for successive one (1) month terms, unless either Party provides written notice of its desire not to renew at least (30) days prior to the expiration of the then-current Subscription Term. . Your access to and use of the Service will terminate at the end of the Subscription Term. OpenPath may terminate this Agreement for cause upon written notice to You if: (i) You breach any term or condition of this Agreement or (ii) if You fail to pay when due any amount owed to OpenPath or an authorized OpenPath reseller relating to this Agreement. Upon termination of this Agreement, Your Subscription Term will automatically terminate. You may terminate this Agreement for cause upon written notice to OpenPath if OpenPath breaches any term or condition of this Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach, which notice must be delivered in accordance with the notice delivery provisions of Section 18 below. Upon termination of this Agreement for any reason, Your Subscription Term and Your use of and access to the Service will automatically terminate. OpenPath will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession.
Jurisdiction This Agreement will be governed by and construed in accordance with the laws of the State of California, County of Los Angeles, United States of America. Any suit, action or proceeding arising in connection with this Agreement will be brought in the courts of the State of California, County of Los Angeles and You expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
Entire Agreement This Agreement is the entire agreement between You and OpenPath relating to the Service and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. Certain other products and services offered by OpenPath may be subject to separate terms and conditions established from time to time by OpenPath. This Agreement may be amended from time to time by OpenPath, with notification provided to You via email in the event of material changes. The current version of this Agreement is available to You at the OpenPath Website. You acknowledge and agree that the posting of amendments to this Agreement at such web site, via the Service or by email message will constitute written notice to You of such amendments. By continuing to use the Service after the effective date of any amendments to this Agreement, You agree to be bound by the amended terms. Except for the foregoing right of OpenPath to so modify this Agreement, this Agreement may otherwise only be modified in writing signed by both parties hereto.
Assignment You may not assign or transfer this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of OpenPath, except that You may assign this Agreement in its entirety to Your successor in the event of a merger, corporate reorganization or a sale of all or substantially all of Your assets so long as such successor is not a competitor of OpenPath.
Export Compliance The Service and, other technology OpenPath makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You shall not permit Users to access or use the Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Waiver If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement will continue in full force and effect. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Notice OpenPath may provide any notice to You under this Agreement by posting a notice to the OpenPath Website or otherwise within the Service or by sending a message to the email address then associated with Your account. Notice provided by posting to the OpenPath Website or within the Service will be effective upon posting and notices provided by email will be effective when OpenPath sends the email. You will be deemed to have received any email sent to the email address then associated with Your account when OpenPath sends the email, whether or not You actually receive it. Notices provided to OpenPath by You under this Agreement must be sent by email to OpenPath at firstname.lastname@example.org. Notices sent by You to OpenPath are effective upon receipt by OpenPath.
Surviving Provisions The provisions of Sections 5 through 19 of this Agreement will survive any termination or expiration of this Agreement.
WHEREAS, unless executed via the OpenPath Website, the parties now hereby cause their duly authorized representatives to execute this Agreement as of the dates set forth below.
You: OPENPATH, INC.
By (Signature): By (Signature):
Name (Printed): Name (Printed):