Website Terms and Conditions
Effective Date: August 15, 2023
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
- Your Acceptance of These Terms and Conditions
All references to “you” or “your,” as applicable, mean the person who accesses or uses the Site in any manner, and each of your heirs, assigns, and successors. If you use the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
Access to and use of the Site is available only to individuals who are at least 18 years old and can form legally-binding contracts under applicable law. By accessing or using the Site, you represent and warrant that you meet this eligibility criteria.
- Ownership of This Site and Its Content
The Site, including any content that forms part of the Site, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including copyright. All content and related intellectual property rights are the sole and exclusive property of OpenGTM or its licensors. Except as otherwise provided herein, no content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, replicated, reverse- or re-engineered, posted or transmitted in any form or by any means without our express prior written permission. All rights not expressly granted by OpenGTM in these Terms are expressly reserved.
- Your Obligations
While using the Site you agree to comply with all applicable laws, rules, and regulations. You further agree that you will not:
- copy the Site;
- disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Site or otherwise discern the source code of the Site;
- adapt, modify, translate, or create derivative works of the Site;
- probe, test, circumvent, disable, or otherwise interfere with features related to security or authentication measures;
- 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, or otherwise access or use the Site in a manner inconsistent with individual human use (e.g., “scraping”);
- distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer any part of the Site, unless expressly permitted by OpenGTM;
- use the Site, or encourage others to use the Site, 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);
- 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);
- 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 Site, or other activity that interferes with or creates an undue burden on the Site;
- use the Site 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
- use the Site in any way not specifically permitted under these Terms.
We reserve all rights and remedies available to us.
OpenGTM may send you emails concerning our Site, products, and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email. If you provide us with your telephone number, we may also call you to: (1) provide you with information you requested from us; and/or (2) respond to your inquiries regarding our products and services.
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. EXCEPT WHERE REQUIRED BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, OPENGTM, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, WITH RESPECT TO THIS SITE, ITS CONTENT, AND ANY PRODUCTS OR SERVICES AVAILABLE OR PROMOTED THROUGH THIS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPENGTM, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THIS SITE; (C) THAT THE CONTENT OF THIS SITE IS ACCURATE, COMPLETE OR CURRENT; OR (D) THAT THIS SITE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR.
WE DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). OPENGTM IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE CONTENT AVAILABLE ON THE SITE OR FOR DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THIS SITE.
WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MIS-DELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. YOU ACCEPT THAT OUR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.
- Limitation of Liability
IN NO EVENT SHALL OPENGTM AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF OPENGTM AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.
THIS LIMITATION OF LIABILITY SECTION APPLIES FULLY IN ALL STATES, INCLUDING RESIDENTS OF NEW JERSEY.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER 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.
- Third-Party Links and Services
The OpenGTM Solution may provide links or access to third party content, websites, services or systems. OpenGTM does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under the control of OpenGTM, and if you choose to access any such content, websites, 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.
- Modification and Discontinuation of the Site
We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently, this Site (or any portion thereof) and/or the information, materials, products and/or services available through this Site (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party in such event.
You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be void.
- Waiver, Severability, and Entire Agreement
Our failure at any time to require performance of any provision of these Terms and Conditions or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by OpenGTM of any breach of any provision of these Terms and Conditions or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right herein.
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
- Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS 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.
You and OpenGTM agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes arising out of or relating to your use of the Site, including claims that may arise after the termination of these Terms or agreement to arbitrate.
By agreeing to these Terms, you agree to resolve any and all disputes with OpenGTM as follows:
- 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: [email@example.com]. 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.
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.
You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, OpenGTM will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. 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 understand that, absent this mandatory arbitration 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, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of Utah. You and OpenGTM further 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.
- 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.
- Class Action Waiver: The parties further agree that the 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 PATRI 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 PATRI 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.
- 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.
- 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 [firstname.lastname@example.org] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first use of the Site or the effective date of the first set of Terms containing an Arbitration and Class Action Waiver section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, OpenGTM also will not be bound by them.
- Changes to This Section: OpenGTM will provide thirty (30) days’ notice of any changes to this section by posting on the Site, sending you a message, or otherwise notifying you directly. Amendments will become effective thirty (30) days after they are posted on the Site or sent to you.
If you continue to use the Site after the 30th day, you agree that any unfiled claims of which OpenGTM does not have actual notice are subject to the revised clause. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Site.
- Survival: This Arbitration and Class Action Waiver section shall survive any termination of the Site or any account you may have with OpenGTM.
- Governing Law
These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. For claims not subject to arbitration, you and OpenGTM agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within [Utah County, Utah] for the purpose of litigating any disputes between you and OpenGTM arising out of or relating to these Terms or your use of the Site. We operate the Site from our offices in Utah, and we make no representation that materials included in the Site are appropriate or available for use in other locations. No joint venture, partnership, employment, or agency relationship exists between you, OpenGTM, or any third-party provider as a result of the Terms or use of the Site.
You are responsible for your use of the Site, and you agree to defend (at OpenGTM’s option), indemnify, and hold harmless OpenGTM and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (ii) your violation of any third-party right, including any intellectual property right or right of publicity, confidentiality, other property, or privacy right; or (iii) any dispute or issue between you and any third party.
OpenGTM reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, OpenGTM may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim without OpenGTM’s prior written consent.
- Modification of these Terms
We reserve the right to update or modify the Terms at any time without prior notice, and except as explicitly provided herein, such changes will be effective immediately upon being posted through the Site, except as set forth below. Your use of the Site following any such change constitutes your agreement to be bound by the modified Terms.
Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
- Contact Us
If you have questions about these Terms, please contact us at email@example.com.