The OptConnect Portal (henceforth known as “Summit” as defined below) is comprised of valuable technology and intellectual property owned by OptConnect Management, LLC. (“OptConnect”) or its licensors. OptConnect is willing to grant you, or if you represent a corporation or entity, that entity (“You” or “User”) the right to access and use Summit provided You agree to the terms of this OptConnect Portal Customer Agreement (the "Agreement"). “Summit” means OptConnect’s online system comprised of OptConnect’s proprietary software, tools, databases and related technology designed to monitor connected devices and made available through a site hosted by or on behalf of OptConnect.
1. Subscription Services. Subject to the terms and conditions of this Agreement, OptConnect will provide User with the Subscription Services. “Subscription Services” means (i) hosting and maintaining Summit, and (ii) granting to User the right to access and use Summit for User's internal business purposes only. You may permit Your third party contractors to access Summit, provided (a) such access and use is solely on Your behalf in accordance with this Agreement and (b) the contractors agree to terms at least as restrictive as these terms.
2. Use of Services.
2.1 OptConnect Responsibilities. OptConnect will (i) provide the Subscription Services; (ii) use commercially reasonable efforts to make Summit available except during scheduled downtime or downtime caused by circumstances beyond OptConnect’s control; (iii) implement appropriate security measures designed to protect User’s User Data; and (iv) comply with applicable laws and government regulations. “User data” means the information and data the User submits or uses in connection with the Subscription Services.
2.2 User Responsibilities. User shall: (i) use Summit only in accordance with the terms of this Agreement and associated documentation, and in compliance with all laws and government regulations, (ii) be responsible for the legality of the User Data; and (iii) comply with the requirements set forth in the acceptable use policy (the “AUP”) posted here www.optconnect.com/AUP.
2.3 Use Restrictions. The total number of connected devices that User monitors through Summit during the Term shall not exceed the number set forth in the Order or authorized under the free trial. User may only use those optional features set forth in the Order or authorized in the free trial. In addition, User shall not: (i) submit, send or store any information through Summit other than User Data; (ii) submit to Summit any computer viruses, trojan horses, time bombs, cancel bots or other computer programming routines intended to detrimentally interfere with Summit (each, a “Virus”); (iii) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of Summit, or adversely affect OptConnect’s right, title or interest in or to Summit; (iv) attempt to gain unauthorized access to Summit or make the Subscription Services available to anyone other than User’s authorized users; (v) sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or timeshare Summit or any portion thereof; or (vi) prepare any derivative work based on Summit or any associated documentation, or decompose, decode or otherwise reverse engineer any other OptConnect technology.
3. Subscription Fee.
3.1 Subscription Fee. Subscription services, other than optional features, are provided free of charge. All optional features may be obtained via a valid Order. Accordingly access to Summit is subject to the terms in the ordering and invoicing documents (the “Order”). All fees for optional features will be billed separately under terms of the Order and will not affect the normal Subscription Services. In the event access to Summit is terminated there are no refunds of fees paid for optional features. OptConnect may suspend or terminate User’s right to access and use Summit when any payment owing to OptConnect is overdue by providing thirty (30) days advance written notice. User is responsible for the payment of all applicable taxes and duties, including without limitation sales, use, excise, value-added, and franchise taxes, associated with its use of the Subscription Services.
4. Proprietary Rights.
4.1. OptConnect Intellectual Property. As between the parties, OptConnect retains all right, title and interest in and to Summit, including without limitation, all intellectual property rights in and to the software and documentation underlying Summit, and User receives no right, title or interest to Summit other than the express rights granted in this Agreement. User shall not remove or obliterate any copyright, trademark or proprietary rights notice of OptConnect or its licensors from Summit or any associated documentation.
4.2. User Intellectual Property. All User Data shall remain the property of User, and OptConnect (and its third-party vendors) shall have the right to possess and use the User Data for performance of the Subscription Services, and for internal and commercial purposes, including to improve its products and services.
4.3. Notice to United States Government End Users. If User is the U.S. Government or if User is a contractor or subcontractor (at any tier) of the U.S. Government and is licensing Summit for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, User acknowledges that the software qualifies as commercial computer software and that the associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of Summit and associated documentation, and shall supersede any conflicting terms or conditions.
4.4. Suggestions and Feedback. In the event that User provides OptConnect with any comments, suggestions or other feedback with respect to the Subscription Services, OptConnect has the right, but not the obligation, to use such feedback in any way without restriction or obligation to User. OptConnect shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from the feedback, including, without limitation, any modifications or enhancements to Summit or other Subscription Services.
5. Confidentiality and Data Security Obligations. Each party agrees that, during and following the Term, such party shall (i) take reasonable steps, at least substantially equivalent to the steps it takes to protect its own confidential information, to protect the other party’s Confidential Information from unauthorized access, copying, or use; (ii) not disclose, except under a binding confidential disclosure agreement as restrictive as the confidentiality terms hereunder, or use the other party’s Confidential Information, and then only in performance of the Agreement; and (iii) return or, at the request and instruction of the disclosing party, destroy, and certify that it has destroyed, all material embodying the other party’s Confidential Information. These obligations shall not apply with respect to any portion of a disclosing party’s Confidential Information that: (a) was in the public domain at the time it was disclosed to or observed by the receiving party; (b) entered the public domain through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without a duty of confidentiality; (d) is independently developed by the receiving party without reference to or incorporation of the other party’s Confidential Information; or (e) is disclosed under operation of law. “Confidential Information” means information relating to or disclosed in connection with the Agreement, which is, or should be reasonably understood to be, confidential or proprietary to a party, including, but not limited to, the terms of the Agreement, pricing, User Data, Summit (including all associated documentation, screen shots and development plans), and all security information.
6.1 User Warranty. User represents, warrants and covenants that (i) it has the right and authority to enter into the Agreement and to use and disclose the User Data and other information or materials provided by or on behalf of User hereunder; (ii) it will obey all applicable laws, rules and regulations in the use of Summit; and (iii) to the best or User’s knowledge, the User Data will contain no Viruses.
6.2 OptConnect Warranty. OptConnect represents, warrants and covenants that (i) it has the right and authority to enter into the Agreement; (ii) Summit will operate in substantial accordance with its specifications; (iii) any open source software incorporated into Summit complies with the applicable license terms and User’s use of the Subscription Services will not require disclosure, licensing or redistribution of User’s proprietary software; and (iv) to the best of OptConnect’s knowledge, Summit contains no Viruses. OptConnect’s sole obligation and User’s sole and exclusive remedy for any breach of this Section 6.2 is for OptConnect to repair Summit. OptConnect does not warrant that: (a) Summit will be uninterrupted or error-free, or (b) Summit will operate in combination with other hardware or software, other than hardware and third-party software approved or recommended by OptConnect in writing.
6.3 Mutual Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES MAKE NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND MERCHANTABILITY.
6.4 Support. Except as set forth in Section 6, or as otherwise set forth in a separate written agreement, OptConnect has no obligation to support Summit or to provide updates or upgrades. OptConnect may provide support, updates, and upgrades that are not required under this Agreement to You at its convenience. Any updates, upgrades and any other repairs, replacements or modifications to Summit made available to You will be subject to the terms and conditions of this Agreement applicable to Summit.
7. Mutual Indemnification.
7.1. Indemnification by OptConnect. OptConnect shall indemnify, defend and hold harmless User and its officers, directors, employees and representatives from and against any and all claims made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in investigation or defense (collectively, “Damages”), to the extent such Damages arise out of or relate to a claim that Summit infringes, misappropriates, or otherwise violates any third party’s U.S. intellectual property rights. OptConnect shall have no obligation for any claim under this Section 7.1 to the extent such claim is based on: (i) any use of Summit outside the scope of this Agreement or any other material breach of the Agreement by User, (ii) any unauthorized modification of Summit by User, (iii) any combination of Summit, to the extent the claim arises from such combination, or (iv) any use of Summit after OptConnect’s notice to User that it cease such use as a result of such claim. If User’s use of Summit in accordance with this Agreement is, in OptConnect’s sole opinion, likely to constitute an infringement of a third party’s intellectual property rights, then OptConnect may promptly and at its own expense, (a) procure for User the right to continue accessing and using Summit; or (b) modify or replace Summit (without materially detracting from its overall performance) so as to avoid the infringement. If neither of the foregoing alternatives is, in OptConnect’s sole opinion, commercially reasonable, OptConnect may immediately terminate the Agreement and refund to User any unused portions of the fees paid by User. TO THE FULLEST EXTENT PERMITTED BY LAW, THE FOREGOING STATES OPTCONNECT’S ENTIRE LIABILITY TO USER IN RESPECT TO ANY CLAIM UNDER THIS SECTION 7.1, AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
7.2. Indemnification by User. User shall indemnify, defend and hold harmless OptConnect and its officers, directors, employees and representatives from any claims made or threatened by a third party and all related Damages, to the extent such Damages arise out of or relate to a claim that the use or transfer of the User Data violates applicable law.
7.3. Defense and Settlement. A party seeking indemnity (the “Indemnified Party”) shall give the other party (the “Indemnifying Party”) prompt notice of any such claim made against it for which it is entitled to indemnity hereunder, and shall cooperate with Indemnifying Party in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that the Indemnifying Party shall control the defense, negotiations and settlement or comprise thereof, except the Indemnifying Party shall not enter into any settlement or compromise which admits the fault of, or necessitates payment by, the Indemnified Party without the consent of the Indemnified Party.
8. Limitation of Liability. EXCEPT FOR WILLFUL MISCONDUCT AND ANY INDEMNITY OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OPTCONNECT BE LIABLE TO USER FOR ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF USER’S USE OF, OR INABILITY TO USE, SUMMIT. EXCEPT FOR WILLFUL MISCONDUCT AND ANY INDEMNITY OBLIGATIONS UNDER SECTION 7, EACH PARTY’S TOTAL LIABILITY UNDER THE AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID OR PAYABLE BY USER FOR A TWELVE MONTH PERIOD.
9. Term and Termination.
9.1 Term. OptConnect will provide the Subscription Services commencing on the date You first accessed Summit and so long as User pays the applicable fees under the Master Service Agreement signed by You and the applicable Subscription Fee under the Order unless terminated earlier in accordance with this Section. The term of this agreement will include any partial month during the first calendar month of paid service and will automatically renew in calendar month increments thereafter until terminated ("Term").
9.2 Termination. Either party may terminate this Agreement as follows: (i) if the other party breaches a material obligation under this Agreement, and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching party a written notice of the breach and a demand for cure, or (ii) immediately by written notice if the other party files a petition in bankruptcy, makes a general assignment for the benefit of its creditors, has a receiver appointed or applied for it, or winds up or liquidates.
9.3 Consequences of Termination. User’s right to access and use Summit and to receive the other Subscription Services will terminate upon expiration of the Term or earlier termination of the Agreement as set forth herein, unless renewed. No refund of any prepaid fees by User shall be given by OptConnect upon termination except for a prorated refund of unused fees in the case of termination by User for OptConnect’s material breach or as provided in Section 7.1. Upon termination, each party will, at the request of the other party, return (in the same format as provided by the disclosing party) or destroy the Confidential Information of the other. Sections 3, 4, 5, 6.3, 7, 8, 9.3 and 10 shall survive termination.
10. General Terms
10.1. Entire Agreement. This Agreement, along with the terms incorporated by reference herein (including the Order and AUP), constitutes the complete and exclusive agreement between OptConnect and User regarding the Subscription Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no pre-printed terms and conditions in User’s purchase order documentation shall be incorporated into this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
10.2. Severability. If any provision of the Agreement is found to be invalid or unenforceable, such provision shall be interpreted as to give maximum effect to its intended purpose and this shall not affect the validity or enforceability of any other provision of this Agreement.
10.3. Notice. Any notice required by this Agreement shall be given in writing and in English and shall be deemed effective upon personal delivery or upon deposit with the appropriate postal service, by registered or certified mail with postage and fees prepaid and addressed to the party entitled to such notice at that party’s business address.
10.4. Force Majeure. Neither party will be liable for, or be considered to be in breach of the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of circumstances beyond the reasonable control of such party, including without limitation acts of God, acts of any governmental authority, Internet or electronic communications failures or delays, war or national emergency, riots, civil commotion, fire, explosion, flood, and epidemic.
10.5. Assignment. Neither party may assign the Agreement, or any rights or obligations hereunder, without the consent of the other party. Notwithstanding the foregoing, OptConnect’s assignment as part of a merger, acquisition or other change of control shall not require Your consent. Any assignment or delegation not permitted under this Section 10.5 shall be null and void. For a permitted assignment, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6. Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Utah, without regard to the choice of law principles thereof. OptConnect and User agree and consent to exclusive jurisdiction and venue in the federal and state courts located in Salt Lake County, Utah for all disputes, controversies or claims which arise out of or relate in any way to this Agreement.
OPTCONNECT PORTAL CUSTOMER AGREEMENT
This agreement was last modified on 12/19/19