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IMPORTANT: READ THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT“) CAREFULLY BEFORE USING THE SERVICE. OPENPATH SECURITY, INC. (“OPENPATH“) IS WILLING TO PROVIDE YOU, AS THE AUTHORIZED USER OF THE SERVICE (“YOU” OR “YOUR“), ACCESS TO AND USE OF THE SERVICE ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND OPENPATH. BY CLICKING “I ACCEPT” ON THE OPENPATH WEBSITE OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR ACCESSING OR USING THE SERVICE, YOU AFFIRM THAT THIS AGREEMENT CONSTITUTES A SIGNED CONTRACT, AND THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL WHO CLICKS “I ACCEPT” OR OTHERWISE ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH AS FOR EXAMPLE HIS OR HER EMPLOYER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO OPENPATH THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF SUCH ENTITY AND IN SUCH EVENT THE TERMS “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.
IF YOU ARE ACCESSING THE MOBILE APP AS A USER (AS DEFINED BELOW) OF AN AUTHORIZED USER OF THE SERVICE, THE MOBILE APP TERMS AND CONDITIONS ATTACHED HERETO AS EXHIBIT A (THE “MOBILE APP TERMS”) SHALL APPLY TO YOUR USE OF THE MOBILE APP. BY CLICKING “I ACCEPT” OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR ACCESSING OR USING THE MOBILE APP, YOU AFFIRM THAT THE MOBILE APP TERMS CONSTITUTE A SIGNED CONTRACT BETWEEN YOU AS “USER” AND OPENPATH, AND THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE MOBILE APP TERMS.
1. Definitions
“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 and without the use of the Disclosing Party’s Confidential Information; 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 or through the Service.
“Documentation” means any online documentation or user guides for the Service published by Openpath and supplied to You by Openpath or made available online by Openpath, as updated from time to time in Openpath’s sole discretion. The Documentation includes, without limitation, the Order Form.
“Hardware” means the access control unit(s), door reader(s), keycards (if applicable) and or other physical components purchased by You from Openpath or an Openpath Reseller and by which You will access and use the Service.
“Mobile App” means Openpath smartphone or other mobile device applications provided or made available for use hereunder.
“Order Form” means the form attached hereto, if this Agreement is executed by signature, which specifies 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 Subscription Term, the Hardware and Services to be provided are specified. The Order Form is hereby incorporated by reference.
“Openpath Reseller” means a third party authorized by Openpath to resell the Hardware and Services.
“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.
“Service” means the online, Web-based hosted software service made available by Openpath via the Openpath Website, and the Mobile App, 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 by an Openpath Reseller with the right to renew or extend subscription terms.
“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 and/or, if applicable, keycards pursuant to the Order Form. Users may include but are not limited to Your employees, consultants, contractors and agents.
2. 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 (i) Openpath the relevant amounts indicated on the Order Form for the Service or (ii) the Openpath Reseller the price agreed by You and the Openpath Reseller for the Service.
If You purchased the Services from an Openpath Reseller and such Openpath Reseller ceases to be an authorized Openpath Reseller, then Openpath may notify You and Openpath may either refer You to another Openpath Reseller or may charge You for access to and use of the Service pursuant to this Agreement.
You further agree that non-payment of any amount owed to Openpath relating to this Agreement or to the Openpath Reseller for access to and use of the Services will constitute a basis for Openpath’s termination of this Agreement and/or suspension of the Service.
The fees for access to and use of the Service (“Service Fees”) are indicated on the Order Form, unless you purchased the Service from an Openpath Reseller. Service Fees payable to Openpath upon purchase and are based on varying term lengths. 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.
Fees and charges imposed by Openpath 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 taxes. If, however, Openpath has the legal obligation to pay 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 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.
3. 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) periods during which the Service is unavailable for maintenance, including without limitation for the implementation of any updates, enhancements, patches, fixes, or error corrections (“Scheduled Maintenance”) and (b) downtime caused by 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.
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 own and Your Users’ compliance with this Agreement and the Documentation. Without limiting the generality of the foregoing, You shall cause Your Users to comply with the Mobile App Terms, and shall be responsible and liable for a breach of the Mobile App Terms by Your Users as if such breach was committed by You.
You will:
You may not:
You acknowledge and agree that Your use of the Service shall at all times be consistent with Openpath’s then-current Acceptable Use Policy. The current Acceptable Use Policy may be found on Openpath’s website.
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.
4. Installation
You, a certified Openpath installer selected by You (a “Certified Installer”) or Your third party contractor will install the Hardware at Your premises. The Openpath Reseller from whom You purchased Hardware may also be Certified Installer. All installation must be done in accordance with the Documentation. It is Your responsibility to ensure that all installation of the Hardware is done in compliance with all applicable laws, rules and regulations. Openpath makes no representations, warranties or guarantees regarding any Certified Installer or the work or services performed by any Certified Installer. In no event will Openpath be responsible for installing the Hardware at Your premises and Openpath will not have any liability with related to the installation of the Hardware at Your premises. 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.
5. 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 the System 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 the Services. Openpath will collect certain data and information related to Your use of the Services and System and Openpath’s performance and delivery of the Services, including without limitation Customer Data.
In connection with Openpath’s provision of Services to You under this Agreement, if Openpath receives any personally identifiable information (as may be defined under applicable law) from You (“PI”), then (a) Openpath will only process such PI for the purpose of providing the Services, (b) Openpath will not retain, use, or disclose such PI: (i) for any purpose other than to perform the Services; or (ii) outside of the direct business relationship between You and Openpath, (c) Openpath will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate such PI to any third party for monetary or other valuable consideration, and (d) Openpath certifies that it understands the restrictions on Openpath’s processing such PI as set forth in this sentence.
For clarity and notwithstanding anything to the contrary, unless prohibited by applicable law and to the maximum extent permitted by applicable law, Openpath may, as a part of the Services and in furtherance of the Services, (a) de-identify and anonymize all such PI (“Deidentified Data”) and (b) aggregate such De-identified Data and other data and information related to Your use of the Service (including without limitation aggregation with other information received by Openpath from its other customers and from other data sources) (collectively, the “Aggregated Statistics”), including for the purposes of providing the Services and enhancing the features, functions, and performance of the Hardware, System and Services. You further acknowledge and agree that solely with respect to De- identified Data, whether or not aggregated, that De-identified Data ceases to be PI, including without limitation for purposes of this Agreement.
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 and agree that Openpath will be compiling Aggregated Statistics based on Your use of the System and the Services and You agree that Openpath may, during and after the term of this Agreement (a) sell, distribute, and otherwise make such Aggregated Statistics publicly available, and (b) compile, aggregate, reproduce and use the data and information (including without limitation De-identified Data) collected by Openpath, including without limitation for purposes of analysis and analytics related to Your use of the System and Services, compiling statistical and performance information related to the System and the Service, developing enhancements to the Services, the Hardware and the System, and marketing. Openpath will use commercially reasonable efforts to implement safeguards and processes that are intended to prevent the re-identification of any such De-identified Data described above that is included in any Aggregated Statistics.
6. 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, in addition to the terms above regarding Aggregated Statistics, 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.
7. Location Services
Openpath may enable location services, including those provided by the smart phone software (e.g., iOS or Android) that may be used as part of the Systems, in order to unlock an entry if a User is close to the entry; disable the System to save battery if You are far from an entry; wake up a System that has gone to sleep; or perform other similar actions. Openpath uses these location services in order to maintain the security of the Systems and improve Users’ experience by reducing the battery life required to power the Systems. Openpath does not track or share the location information that it receives about Users through the Systems for other purposes.
8. Privacy
Openpath does not share, sell, rent or trade personally identifiable information with third parties for promotional purposes. Please see the current version of Openpath’s Privacy Policy for additional information, which may be found at https://www.openpath.com/privacy-policy/. The current version of Openpath’s Privacy Policy is incorporated into this Agreement by this reference.
Pursuant to GDPR requirements, as applicable, your organization may have chosen to enter into Openpath’s GDPR DATA PROCESSING ADDENDUM available here for UK customers: Data Processing Addendum (UK)
And here for EU customers: Data Processing Addendum (EU)
9. 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 13 (Term, Termination & Refund) below) and data that is older than one (1) year in active Service accounts is subject to deletion.
10. Limited Warranties & Disclaimers
You represent and warrant that (a) You have all the necessary government permits, licenses and similar authority to conduct business on the premises where You install (or have installed) the Hardware, (b) You will comply will all applicable laws and regulations at such premises and in connection with the business conducted at such premises, (c) if You use a Certified Installer to install the Hardware, the Certified Installer will not be exposed to any hazardous materials on such premises, and (d) 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 is not an insurer under this Agreement.
Openpath does not make any representations or warranties to You under this Agreement or otherwise, including without limitation any representations or warranties with respect to any Hardware. Rather, Openpath makes certain limited Hardware warranties to Openpath Resellers. If You have an issue or problem with any Hardware, please contact the Openpath Reseller that sold the Hardware to You.
You agree that if any Hardware is (i) subject to negligence or misuse by You or others, (ii) is damaged as a result of any occurrence beyond Openpath’s control, (iii) is modified by You or any other person, or (iv) is damaged or malfunctions and such damage or malfunction is caused in whole or in part by unauthorized use of the Service, the System or by any computer virus, worm, malware or malicious code, then the Openpath Reseller will not be required to repair or replace the Hardware or provide a refund to You for the Hardware.
Neither Openpath nor any Openpath Reseller shall have any obligation to make safety tests, modifications, changes or replacements, nor to install new attachments to the Hardware which may be recommended or directed by insurance companies, or government, state, municipal, or other authorities.
You are responsible for the acquisition, repair, maintenance and 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.
If an emergency service call is made at Your request and the inspection by the Openpath Reseller does not reveal any defect for which Openpath has made a warranty to the Openpath Reseller, You shall be liable for any charges prevailing for the service call, including without limitation travel time and time spent diagnosing the issue.
The System is not designed for or intended to provide security for Your premises, its contents, or its occupants. Rather, the System is designed and intended to provide access control to Your premises as described in the Documentation. Openpath shall not be liable for any damages, including without limitation, special, indirect, incidental or consequential damages, arising from or claimed to have arisen from, any unauthorized entry due to lost, stolen, or misplaced keycards. Accordingly, You agree that Openpath shall not be liable for any damages, including without limitation 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 HARDWARE, THE SYSTEM, AND THE SERVICE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENPATH DISCLAIMS ON BEHALF OF ITSELF AND THE OPENPATH RESELLERS AND OPENPATH’S SUPPLIERS, VENDORS AND LICENSORS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OPENPATH DOES NOT WARRANT THAT THE HARDWARE, THE SYSTEM OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE SYSTEM, THE HARDWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NO PERSON OR ENTITY (INCLUDING WITHOUT LIMITATION ANY OPENPATH RESELLER) IS AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE HARDWARE, THE SYSTEM, OR THE SERVICE.
11. Disclaimer of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENPATH OR ITS DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, LICENSORS OR AGENTS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOSS OF REVENUE, 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 OR THE SYSTEM, EVEN IF OPENPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY. IN NO CASE WILL OPENPATH’S OR ITS SUPPLIERS’ OR 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 LESS IN EACH CASE AMOUNTS PREVIOUSLY PAID BY OPENPATH IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT, AND REGARDLESS OF THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING CONTRACT, TORT, NEGLIGENCE, INDEMNITY, OR ANY OTHER LEGAL THEORY OF LIABILITY. YOU ACKNOWLEDGE THAT THE TERMS IN THIS SECTION 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.
12. 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 6 (Confidentiality).
13. Term, Termination & Refunds
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 (or the Openpath Reseller that sold the Services to You) and Openpath, and unless sooner terminated for cause as provided below, will continue to renew for the same length as the initial term and at the then current fair-market rate unless and until either party provides written notice to the other of their intent to terminate at the end of the then current initial or renewal term at least 30 days’ prior to the final day of such 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 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 19 (Notice) below. Upon termination of this Agreement for any reason, Your Subscription Term and Your use of and access to the Service will automatically terminate. Upon termination of this Agreement, 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.
YOUR PURCHASE IS FINAL AND IF YOU CANCEL YOU WILL NOT RECEIVE A REFUND OF OR CREDIT FOR ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD. If we cancel your subscription term we will refund any payment you have already remitted to us for such service. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.
14. Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of California, 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.
15. Entire Agreement
This Agreement, including without limitation the Mobile App Terms, 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 as indicated below. 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.
16. 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. Openpath may assign this Agreement.
17. 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.
18. Waiver and Severability
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.
19. 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 billing [at] openpath.com. Notices sent by You to Openpath are effective upon receipt by Openpath.
20. Surviving Provisions
The provisions of Sections 5 (Proprietary Rights) through 20 (Surviving Provisions) of this Agreement will survive any termination or expiration of this Agreement.
EXHIBIT A
MOBILE APP TERMS
These Mobile App Terms are a legal agreement between User and Openpath, and are made subject to and governed by the Agreement between User’s employer, or client to which User provides services, who has been authorized to access and use the Service (the “Authorized Customer”). These Mobile App Terms shall apply to User’s use of the Mobile App. by clicking “I Accept” or otherwise indicating assent electronically, or accessing or using the Mobile App, User affirms that the Mobile App Terms constitute a signed contract between User and Openpath, and that User has read, understands, and agrees to be bound by the terms and conditions of the Mobile App Terms. Capitalized terms used in these Mobile App Terms but not otherwise defined herein shall have the meanings set forth in the Agreement.
1. Use of Mobile App. To use the Mobile App, User must have a mobile device that is compatible with the mobile service. Openpath does not warrant that the Mobile App will be compatible with User’s mobile device. Openpath hereby grants to User during the term of the Agreement a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile App for one registered account on one mobile device owned or leased solely by the Authorized Customer or User, for User’s use. User shall only access and use the Mobile App upon authorization granted by the Authorized Customer to User pursuant to the Agreement. User shall only use the Mobile App on the mobile device to which the Mobile App has been downloaded in accordance with such authorization. In the event of User’s termination of employment or other relationship with the Authorized Customer, User’s rights to access and use the Mobile App shall automatically terminate. User hereby acknowledges that Openpath may from time to time issue upgraded versions of the Mobile App, and may automatically electronically upgrade the version of the Mobile App that User is using on User’s mobile device. User consents to such automatic upgrading on User’s mobile device, and agrees that these Mobile App Terms will apply to all such upgrades. Standard carrier data charges may apply to User’s use of the Mobile App.
2. Restrictions. User shall not:
User’s use of the Mobile App shall at all times be consistent with the Agreement and the then-current Openpath Acceptable Use Policy. The current Acceptable Use Policy may be found on Openpath’s website.
3. Proprietary Rights. The license grant set forth in these Mobile App Terms is not a sale of the Mobile App or any copy thereof, and Openpath and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile App (and any copy of the Mobile App). 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 Mobile App and all portions thereof, including all related intellectual property rights. No rights are granted to User hereunder other than as expressly set forth herein.
4. Additional Terms. The following additional terms and conditions apply with respect to any Mobile App that Openpath provides to User designed for use on an Apple iOS-powered mobile device (an “iOS App”):
The following additional terms and conditions apply with respect to any Mobile App that Openpath provides to User designed for use on an Android-powered mobile device (an “Android App”):
5. No Warranties. THE MOBILE APP IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENPATH DISCLAIMS ON BEHALF OF ITSELF AND THE OPENPATH RESELLERS AND OPENPATH’S SUPPLIERS, VENDORS AND LICENSORS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OPENPATH DOES NOT WARRANT THAT THE MOBILE APP WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE MOBILE APP WILL BE UNINTERRUPTED OR ERROR-FREE. NO PERSON OR ENTITY (INCLUDING WITHOUT LIMITATION ANY OPENPATH RESELLER) IS AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE MOBILE APP.
6. Disclaimer of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENPATH OR ITS DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, LICENSORS OR AGENTS BE LIABLE TO USER FOR ANY LOST PROFITS, LOSS OF REVENUE, SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SIMILAR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATING TO THE MOBILE APP TERMS, THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE MOBILE APP, THE SERVICE OR THE SYSTEM, EVEN IF OPENPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY. IN NO CASE WILL OPENPATH’S OR ITS SUPPLIERS’ OR LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES THAT THE AUTHORIZED CUSTOMER PAID FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY LESS IN EACH CASE AMOUNTS PREVIOUSLY PAID BY OPENPATH IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT, AND REGARDLESS OF THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING CONTRACT, TORT, NEGLIGENCE, INDEMNITY, OR ANY OTHER LEGAL THEORY OF LIABILITY. USER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 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.
7. Governing Law. These Mobile App Terms will be governed by and construed in accordance with the laws of the State of California, United States of America. Any suit, action or proceeding arising in connection with these Mobile App Terms will be brought in the courts of the State of California, County of Los Angeles and User expressly submits to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
8. Entire Agreement. These Mobile App Terms and the Agreement is the entire agreement between User and Openpath relating to the Mobile App 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. These Mobile App Terms may be amended from time to time by Openpath, with notification provided to User as indicated below. The current version of these Mobile App Terms is available to User at the Openpath Website. User acknowledges and agrees that the posting of amendments to these Mobile App Terms at such web site, via the Service or by email message will constitute written notice to User of such amendments. By continuing to use the Mobile App after the effective date of any amendments to these Mobile App Terms, User agrees to be bound by the amended terms. Except for the foregoing right of Openpath to so modify these Mobile App Terms, these Mobile App Terms may otherwise only be modified in writing signed by both parties hereto.
9. Waiver and Severability. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these Mobile App Terms 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. Sections 2 (Restrictions) through 10 (Notice) of these Mobile App Terms will survive any termination or expiration of this Agreement.
10. Notice. Openpath may provide any notice to User under this Agreement by posting a notice to the Openpath Website or otherwise within the Mobile App or by sending a message to the email address then associated with User’s account. Notice provided by posting to the Openpath Website or within the Mobile App will be effective upon posting and notices provided by email will be effective when Openpath sends the email. User will be deemed to have received any email sent to the email address then associated with User’s account when Openpath sends the email, whether or not User actually receives it. Notices provided to Openpath by User under this Agreement must be sent by email to Openpath at info [at] Openpath.com. Notices sent by User to Openpath are effective upon receipt by Openpath.
