Terms of Service Agreement
Last updated: August 15, 2023
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms of Service (“Terms”) govern access to and use by any individual or entity creating or using an account (“Customer”) for the Services (as defined below) offered by, as applicable, Patri Inc. d/b/a OpenGTM or a Patri Inc. Affiliate (together, “OpenGTM,” “Patri,” “we or us”). Customers may be referred to collectively in these Terms as “you” and “your” as applicable. The “Parties” refer to OpenGTM and Customer and “Party” refers to each of OpenGTM and Customer.
We may revise these Terms or any additional terms and conditions that are relevant to the Services from time to time. We will post the revised terms on our website with a “last updated” date. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
YOU REPRESENT AND WARRANT TO OPENGTM THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING TERMS. IF YOU ARE USING THE SERVICE ON BEHALF OF ANOTHER INDIVIDUAL OR ENTITY, YOU HEREBY REPRESENT AND WARRANT TO OPENGTM THAT YOU HAVE THE AUTHORITY TO BIND SUCH INDIVIDUAL OR ENTITY TO THESE TERMS.
These Terms are entered into the earlier of (the “Effective Date”): (a) the date you first use any part of the Services; and (b) the date you agree to be bound by this Terms.
As used in this Terms, the following capitalized words have the meaning set out below:
1.1. “Affiliate” means, with respect to a Party, any corporation or other legal entity, which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
1.2. “Customer Data” means all information that is (i) collected through Customer’s implementation and use of the Services and/or (ii) provided by Customer and its Permitted Users.
1.3. “Debrief Services” means OpenGTM’s services that analyze Customer RFx and other opportunities as further defined here.
1.4. “Deliverables” means all documents, work product and other materials prepared for and delivered to Customer as part of the Debrief Services and other professional services.
1.5. “Intellectual Property Rights” means, but is not limited to, rights in and to patents, patent disclosures, patent applications (including utility models, continuations, continuations-in-part, divisions, re-issues, re-examined patents and patent applications, and extensions thereof), patentable inventions, rights in design, copyrights (including any such rights in typographical arrangements, websites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, trademarks, trading, business or domain names and e-mail addresses, mask-works, trade secrets, rights in inventions, know-how, moral rights, and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character that subsist now or in the future in any part of the world, whether arising by operation of law, contract, license or otherwise.
1.6. “Permitted User” means an employee, consultant, advisor or other individual who Customer authorizes to access and use the Services.
1.7. “Personal Data” means all data provided by Customer to OpenGTM in connection with OpenGTM’s performance of the Services that constitutes “personal data,” “personal information,” “personally identifiable information,” and similar terms, and such terms shall have the same meaning as defined by applicable data privacy laws.
1.8. “OpenGTM Solution” means OpenGTM’s proprietary SaaS opportunity intelligence solutions known as RFx Score, OpenGTM Platform, GTMfit, GTMpulse, and GTMconnect.
1.9. “Renewal Term” has the meaning given such term in Section 8.1 hereof.
1.10. “Services” means the OpenGTM Solution and the Debrief Services and any other services OpenGTM provides Customer.
1.11. “Subscription” means the access to the OpenGTM Solution acquired by Customer upon account creation.
1.12. “Subscription Term” means the initial term identified in an Order Form when Customer orders the Services, and all Renewal Terms thereof, during which period Customer and its Authorized Users are permitted to use the OpenGTM Solution.
- OpenGTM Solution
2.1. _License to the OpenGTM Solution. _Subject to Customer’s and its Permitted Users’ compliance with these Terms, OpenGTM grants to Customer and to its Permitted Users (up to the number of such Permitted Users as set forth in an Order Form), a non-exclusive, non-transferable, and limited license to use the OpenGTM Solution during the Subscription Term solely for its internal business purposes. Customer’s use of the OpenGTM Solution is also subject to any limitations described in these Terms, and in any of the documentation accompanying the OpenGTM Solution.
2.2. Restrictions on Use. Customer acknowledges and agrees that it is responsible for all use by Permitted Users of the OpenGTM Solution. Customer will ensure that all use by Permitted Users of the OpenGTM Solution is in compliance with these Terms and any guidelines and policies published by OpenGTM and made available to Customer from time to time. Without limiting the generality of any of the foregoing, except as explicitly permitted in these Terms, Customer will not itself, and will not permit others to: (a) copy the OpenGTM Solution; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the OpenGTM Solution or otherwise discern the source code of the OpenGTM Solution; (c) adapt, modify, translate, or create derivative works of the OpenGTM Solution; (d) probe, test, circumvent, disable, or otherwise interfere with features related to security or authentication measures; (e) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation thereof (e.g., “scraping”); (f) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the OpenGTM Solution or any of Customer’s rights therein; (g) use the OpenGTM Solution to create, collect, transmit, store, use, or process any data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (h) attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g., using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); (i) interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the OpenGTM Solution, or other activity that interferes with or creates an undue burden on the OpenGTM Solution; (j) use the OpenGTM Solution to conduct any unlawful or fraudulent activities, send unsolicited communications or spam, publish or link to malicious content designed to disrupt another individual’s browser or computer; or (k) use the OpenGTM Solution in any way not specifically permitted under these Terms.
2.3. Suspension of Access; Scheduled Downtime; Modifications. OpenGTM may from time to time and in its discretion, (i) without limiting any of its other rights or remedies at law or in equity under these Terms, suspend Customer’s access to or use of the OpenGTM Solution or any component thereof: (a) for scheduled maintenance; (b) due to a Force Majeure event, (c) if Customer or any Permitted User violates any provision of these Terms, including, for greater certainty, any of the restrictions set out in Section 2.2 above; (d) to address any security concerns; or (e) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law; and (ii) modify or delete features and functions of the OpenGTM Solution, and may substitute old features or functions with new features and functions, as may be necessary to meet applicable laws or industry-standard requirements or demands or requirements of third party service providers, or otherwise in its discretion.
Debrief Services. If Customer orders the Debrief Services, OpenGTM will use commercially reasonable efforts to provide the Deliverables to Customer as further set forth in the Order Form. In connection therewith, Customer shall cooperate with OpenGTM in the performance of the Debrief Services and in the development of Deliverables, including by providing access to Customer’s personnel, systems, equipment, information, or as reasonably requested by OpenGTM. If Customer has not provided such assistance, including but not limited to providing all necessary cooperation or information to OpenGTM, or OpenGTM otherwise denied or delayed access or information by Customer, then OpenGTM will be excused, without liability, from completing the Debrief Services until such time, if any, as Customer has provided the necessary assistance. Such failure to perform the Debrief Services resulting from Customer’s failures will not relieve Customer from its payment obligations to OpenGTM.
Ownership and Licenses.
4.1. Ownership of the OpenGTM Solution. As between you and OpenGTM, the OpenGTM Solution and all Intellectual Property Rights therein or relating thereto are and shall remain the exclusive property of OpenGTM. Nothing in these Terms shall be interpreted to provide you with any rights in the foregoing, except the limited right to use the Services subject to these Terms.
4.2. Customer Data. Customer retains all ownership rights, including ownership of all Intellectual Property Rights in and to the Customer Data. Customer grants to OpenGTM a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, collect, use, process, store, disclose, and transmit Customer Data to: (i) provide the Services; (ii) improve and enhance the Services and its other offerings; and (iii) produce data, information, machine learning models, or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data“). Customer Data shall not include Aggregated Data and OpenGTM may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. Customer Confidential Information includes Customer Data.
4.3. OpenGTM Metadata. OpenGTM or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to the metadata that is generated by the Services resulting from Customer’s use of the OpenGTM Solution (“OpenGTM Metadata“).
4.4. _Debrief Services. _ Except as set forth in this paragraph, all Intellectual Property Rights in and to the Deliverables shall be owned exclusively by OpenGTM. Provided that Customer has paid OpenGTM all Fees (as defined below) for the Debrief Services, OpenGTM hereby grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable license in the Deliverables to use solely for its internal business purposes. Notwithstanding the foregoing, Customer shall retain ownership, including all Intellectual Property Rights therein, of all its Confidential Information that is included in the Deliverables. Customer hereby grants OpenGTM a non-exclusive, worldwide, perpetual basis to use the Confidential Information solely to the extent necessary to provide the Services, including the Deliverables.
4.5. Feedback. You hereby assign to OpenGTM all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by you to OpenGTM relating to the Services (collectively, “Feedback“), and OpenGTM will have the unrestricted right to use and disclose Feedback, without duty or obligation to you, and you acknowledge that any improvements, modifications and changes arising from or in connection with your contribution to the Services are the exclusive property of OpenGTM’s.
4.6. _Retention of Rights. _Except for the limited rights or licenses that OpenGTM grants to you hereunder, OpenGTM or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; and (ii) any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations to the foregoing.
- Access to the OpenGTM Solution; Customer User Account; Responsibility for Permitted Users
To access the OpenGTM Platform, Customer will authenticate via its Google account. To use RFx Score, Customer will need to set up one or more accounts (each, a “Customer User Account”) for use by Customer and its Permitted Users. Customer may also designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the OpenGTM Solution. Customer will ensure that Permitted Users only use the OpenGTM Solution through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer is responsible for maintaining the security of and access to its passwords and files and is responsible for all uses of its Subscription with or without its knowledge or consent. Customer will not disclose passwords, certificates, authorizations, or other access controls to anyone other than Permitted Users, and Customer will use reasonable efforts to prevent unauthorized access to the foregoing. Customer will promptly notify OpenGTM of any actual or suspected unauthorized use of the OpenGTM Solution. OpenGTM reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account or a Customer’s Google account as applicable, may have been used for an unauthorized purpose. Customer is responsible for ensuring that all Permitted Users are aware of and comply with the terms of this Terms. Any breach of these Terms by such individuals shall be deemed to be a breach by Customer.
- Third-Party Content, Websites or Services*.*
The OpenGTM Solution may provide links or access to third-party content, websites, datasets, services or systems. OpenGTM does not endorse any third-party content, websites, datasets, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, datasets, services, or systems are not under the control of OpenGTM, and if you choose to access any such content, websites, datasets, services, or systems, you do so entirely at your own risk. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
- Fees and Payment
8.1. Fees. Customer will pay to OpenGTM the fees described in any and all Order Forms (the “Fees”) in accordance with the terms set forth therein. Unless otherwise set out in writing by OpenGTM, all Fees are identified in US dollars and are payable in advance. If Customer’s use of the Services exceeds the service capacity set forth in an Order Form or otherwise requires the payment of additional fees pursuant to these Terms, Customer will be billed for such usage and Customer will pay the additional fees in accordance with these Terms. Fees are exclusive of all taxes other than taxes on OpenGTM’s net income, and Customer shall pay (and OpenGTM shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with these Terms, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Service provided hereunder.
8.2. Freemium Model; Free Trial. OpenGTM currently offers a free version of the OpenGTM Solution with certain features available at no charge. Customer may order such free version and convert to a paid Subscription at any time by entering into an Order Form with OpenGTM for the paid version. OpenGTM may cease providing such free version at its option whenever it so chooses, and in such event, Customer will have the option to upgrade to a paid Subscription. In addition, OpenGTM may also provide Customer with a free trial of the paid version of the OpenGTM Solution for a period of time set by OpenGTM in writing. Near to or upon the expiration date of the free trial, OpenGTM will notify Customer that the trial will be ending or has ended. Customer will be given the option to upgrade to a paid subscription. If Customer does not agree to continue use of the OpenGTM Solution through a paid Subscription as described herein, OpenGTM will terminate Customer’s right to access the OpenGTM Solution.
8.3. Changes to the Fees. OpenGTM reserves the right to change the Fees and institute new charges before a Renewal Term; provided, that OpenGTM has given Customer prior notice and an opportunity to terminate its Subscription in such event.
8.4. Late Payment. Without limiting OpenGTM’s other rights and remedies, if Customer does not pay any amount when due, then fifteen days after the day such payment was due (a) interest shall accrue on such undisputed amounts at 1.5% per month (or less, as per the maximum amount allowed by applicable law); (b) to the extent applicable, Customer shall pay any third party costs of collection (including, without limitation, reasonable attorneys’ and professionals’ fees); and (c) OpenGTM may, upon notice suspend Customer’s access to the Services until such undisputed amounts are paid in full. To the extent Customer believes an amount charged or invoiced is incorrect, Customer must contact OpenGTM within 30 days of receiving the relevant invoice or Customer’s right to dispute any charges will be deemed to be waived.
8.5. Suspension. Any permitted suspension of the Services by OpenGTM pursuant to these Terms will not excuse Customer from its obligation to make payments under these Terms.
- Term and Termination
9.1. Term. These Terms will commence on the Effective Date and will continue as long as there is an Order Form in effect, or until otherwise terminated in writing by the Parties as provided in this Section. Except as otherwise provided in these Terms, Customer’s Subscription will automatically renew for successive renewal terms (each a “Renewal Term”) as set out in an Order Form unless Customer provides OpenGTM with written notice of its intention not to renew at least 30 days prior to the end of the then current term or such other period as set out in an Order Form.
9.2. Termination for Convenience. OpenGTM may terminate these Terms with respect to the Services or any Order Form at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to Customer. In such event, OpenGTM will refund to Customer, on a pro-rata basis, any unused prepaid Fees paid for the Subscription for any period following the effective date of termination.
9.3. Termination for Cause. If you fail to comply with any provision of these Terms, OpenGTM may terminate these Terms immediately and retain any fees previously paid by you, if applicable. Upon any such termination, you must cease any further use of the Services. If at any time you are not happy with the Services your sole remedy is to cease using the Services. Within 180 calendar days following termination or such other period as set out in an Order Form in connection with the Services, OpenGTM will, at Customer’s option, return to Customer or delete or otherwise render inaccessible the Customer Data that remains in the hardware or systems used by OpenGTM to provide the Services.
- Confidential Information
10.1. Definitions. For the purposes of this Terms, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into these Terms, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, including, where the Discloser is Customer, Customer Data, and, where the Discloser is OpenGTM, OpenGTM Metadata or Services; provided that Discloser’s Confidential Information does not include, except with respect to Personal Data: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
10.2. Confidentiality Covenants. Recipient hereby agrees that it will not, except to exercise its rights or perform its obligations under these Terms: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” and that have entered into written Terms no less protective of such Confidential Information than this Section 10 and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
10.3. Exceptions to Confidentiality. Notwithstanding Section 10.2, Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) to potential assignees, acquirers or successors of OpenGTM if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of OpenGTM.
10.4. Injunctive Relief. The Recipient acknowledges that disclosure of any Confidential Information by it will give rise to irreparable injury to the Discloser or the owner of such information, not adequately compensated by damages. Accordingly, the Discloser will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 10, in addition to any other legal remedies which may be available.
- Customer Warranties; Disclaimer
11.1. Customer Representations and Warranties. Customer represents and warrants that it has and shall maintain for the duration of these Terms all right, license and consent required under applicable law to provide OpenGTM with Customer Data for the provision of the Services pursuant to these Terms .
11.2. Customer further represents and warrants that (a) it is not named on any U.S. or other list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S, (b) it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party’s goods or services is prohibited under U.S. or other applicable laws or regulations.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, OPENGTM DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICE (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OPENGTM TO YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND OPENGTM DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICE (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER. OPENGTM MAKES NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE SERVICE OR FURNISHED TO CUSTOMER BY OPENGTM.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, OPENGTM HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, OPENGTM EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
YOU AGREE TO INDEMNIFY, DEFEND (AT OpenGTM's OPTION), AND HOLD OPENGTM AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, CONTRACTORS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICE, YOUR CONNECTION TO THE SERVICE, YOUR VIOLATION OF THESE TERMS, YOUR VIOLATION OF ANY APPLICABLE LAW, AND/OR YOUR VIOLATION OF ANY RIGHTS, INCLUDING PRIVACY RIGHTS, OF ANOTHER INDIVIDUAL OR ENTITY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
- Limitation of Liability.
IN NO EVENT SHALL OPENGTM OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICE OR BUSINESS OPPORTUNITIES, ARISING OUT OF THESE TERMS OR ANY ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF OPENGTM HAD BEEN ADVISED OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OpenGTM's MAXIMUM AND AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO OPENGTM HEREUNDER DURING THE 6 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. If you are located in the State of New Jersey, or a resident of another state that permits the exclusion of these warranties and liabilities, the limitations above do apply to you.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
14.1. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices will be sent: (i) if to OpenGTM, to the following address:
OpenGTM Inc. Attention: 224 S. Main Street #528 Springville, UT 84663; Email: email@example.com
and (ii) if to you to the current postal or email address that OpenGTM has on file for you.
OpenGTM may change its contact information by posting the new contact information on its Site, through the Services or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with OpenGTM current at all times during the Term.
- Binding arbitration and class action waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. FOR RESIDENTS OF THE EUROPEAN UNION OR UNITED KINGDOM WHO USED THE SERVICES IN THE EU OR UK, PLEASE ALSO REFER TO THE SECTION ENTITLED “DISPUTE RESOLUTION FOR E.U. OR UK RESIDENTS”BELOW.
15.1 Initial Dispute Resolution
Most disputes can be resolved without resorting to litigation. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with OpenGTM, and good faith negotiations as part of this informal dispute resolution process shall be a condition to either party initiating a lawsuit or arbitration. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: firstname.lastname@example.org. For any dispute that OpenGTM initiates, we will send our written description of the dispute to the email address associated with your OpenGTM account. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought.
15.2 Binding Arbitration
If the Parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the Parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.
Except as set forth in Section 15.5, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The Parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written, and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
JAMS Arbitration Rules & Procedures governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. The Streamlined Arbitration Rules & Procedures shall apply for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures shall apply for claims exceeding $250,000, excluding any rules or procedures governing or permitting class actions.
To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 2 Embarcadero Center Suite 1500, San Francisco, CA 94111; and (c) send one copy of the Demand for Arbitration to OpenGTM, 224 S. Main Street #528 Springville, UT 84663.
If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require OpenGTM to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, OpenGTM will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The Parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The Parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 15 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States or a resident of the European Union who brings a claim against OpenGTM, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside of the United States, arbitration shall be initiated in Utah County, Utah, United States of America, and you and OpenGTM agree to submit to the personal jurisdiction of any federal or state court in Utah County, Utah, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
15.4 Class Action Waiver
The Parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND OPENGTM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS OPENGTM PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
15.5 Exception – Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
15.6 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: OpenGTM Inc., email@example.com. The notice must be sent within 30 days of your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, OpenGTM also will not be bound by them.
15.7 Changes to this Section
OpenGTM will provide 30 days’ notice of any changes to this section, by posting on the Services, sending you a message, or otherwise notifying you directly. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which OpenGTM does not have actual notice are subject to the revised clause.
15.8 Choice of Law and Jurisdiction.
The Terms and the relationship between you and OpenGTM shall be governed by the laws of the State of Delaware without regard to conflict of law provisions. For any dispute not subject to arbitration, you and OpenGTM agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the state of Utah. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
_15.9 Dispute Resolution for EU or UK Residents Who Have Used the Services in the EU or UK. _
Either Party may initiate binding arbitration as the sole means to resolve all disputes, subject to the terms above, as permitted by European law. Any controversy that arises or is related to these Terms be submitted to the non-exclusive jurisdiction of the courts of the place of your domicile.
- General Information
16.1. _Statute of Limitations. _You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
16.2. _Section Titles. _The section titles in the Terms are for convenience only and have no legal or contractual effect.
16.3 Export Restrictions. Customer agrees not to directly or indirectly export, re-export or import all or any portion of the Services without first obtaining all required licenses, permits and permissions. OpenGTM makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
16.4 Construction. Except as otherwise provided in these Terms, the Parties’ rights and remedies under these Terms are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms are for reference purposes only and have no substantive effect.
16.5 Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure Event”).
16.6 _ Survival._ The following Sections, together with any other provision of this Terms which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Terms, will survive expiration or termination of this Terms for any reason: Section 8 (Fees and Payment), Section 10 (Confidential Information), Section 11 (Customer Warranties; Disclaimer), Section 12 (Indemnification) Section 13 (Limitation of Liability), Section 14 (Notices), Section 15 (Binding Arbitration and Class Action Waiver) and Section 16 (General Information).
16.7 Assignment. OpenGTM may, upon giving written notice to you, assign its rights and obligations under these Terms to any of its Affiliates or pursuant to a merger, sale, or other corporate reorganization of all or substantially all of its assets relating to that portion of its business that delivers the Services. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of OpenGTM under these Terms, except that the assignment will not release OpenGTM from liability for OpenGTM’s obligations under these Terms. Except for such permitted assignment, neither Party may assign these Terms or any rights or obligations under these Terms without the prior written consent of each of the other Party. These Terms enure to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
16.8 Severability. Any provision of these Terms found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from these Terms and all other provisions of these Terms will remain in full force and effect.
16.9 Waiver. A waiver of any provision of these Terms will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
16.10 _Independent Contractors. _OpenGTM’s relationship to you is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
16.11 _Entire Terms. _These Terms constitute the entire Terms between the Parties with respect to the subject matter of these Terms and supersede all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
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