Website Terms & Conditions
1.0: Definitions. Where used herein the following terms shall have the meanings set forth below, unless the context requires otherwise. Other capitalized terms are defined elsewhere in this Agreement.
“Customer Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Customer and to which OPTG provides Services hereunder. All Customer Affiliates are included within the definition of “Customer” and all references to “Customer” in this Agreement are deemed to include all Customer Affiliates.
“Merchant” means a party that accepts credit cards in the course of its business.
“Merchant Identification Number” or “MID” is a unique number assigned to a Merchant account to identify it throughout the course of processing activities.
“OPTG Equipment” means any equipment deployed to Customers to enable OPTG to provide the Services which is either: (i) owned by OPTG; or (ii) is owned by OPTG agents, suppliers, or subcontractors, and as between OPTG and Customer, shall be deemed owned by OPTG. The Firewall is OPTG equipment.
“PCI DSS” means the PCI Data Security Standard promulgated by the Payment Card Industry (PCI) Security Standards Council, as it may be amended, updated, and modified from time to time, setting forth best practices for protecting customers’ credit card information.
“Services” means the products and services (including Third Party Products) ordered by Customer and provided by OPTG for the Site(s) pursuant to Exhibit B to this Agreement. OPTG may change the Services upon thirty (30) days’ notice to Customer, but any such change shall not materially degrade the Services during a period in which Customer has paid for the Services.
“Site” means each physical location(s) that will receive the Services, as identified on Exhibit A and in the Site Assessment Form attached as Exhibit C to this Agreement. Each Site must be identified by a unique MID.
“Site Term,” “Site Initial Term,” “Site Renewal Term” and “Term” have the meanings assigned to them in Section 5.1 of this Agreement.
“Third Party Agreement” means any end user license agreement, terms of service, terms of use, privacy policy, warranty, or other agreement or terms applicable to Third Party Products.
“Third Party Products” means any third party equipment, software and services, including without limitation, cloud based services, platforms and solutions, which Customer purchases, leases, subscribes to, licenses, accesses or uses as part of the Services including, without limitation, the PCI Portal, the BPP, the Event Logging solution and the Fortinet Firewall.
“User” means each individual Customer employee, contractor, agent or representative who receives and uses Services under this Agreement.
2.0 Services Conditions and Restrictions
2.1 Use of Subcontractors. OPTG may, at its option, provide and perform the Services through its affiliates, agents, suppliers or subcontractors.
2.2 Third Party Agreements; End User Agreements. Notwithstanding anything to the contrary in this Agreement, use by Customer and its Users of Third Party Products shall be subject to the terms of any applicable Third Party Agreements. Prior to, or as a result of, implementation, installation or use of the Services, Customer and its Users may be required to agree to or sign, or be deemed to have accepted and agreed to, one or more Third Party Agreements. Customer agrees that it is bound by and shall comply with all Third Party Agreements.
2.3 OPTG Equipment. Some of the Services will involve Customer’s use of OPTG Equipment at the Site(s). All OPTG Equipment provided by OPTG to Customer in connection with the Services, shall at all times be and remain the sole property of OPTG, and when provided to Customer is provided solely on a leased basis. For any leased equipment, at the conclusion of any lease term listed in Exhibit B to the to Master Services Agreement, Customer shall have the option to purchase the equipment for a purchase price of $1.00, provided that Customer is then current in its payments to OPTG and is otherwise not in material default of any of the provisions of this Agreement. During the lease term Customer shall bear all risk of loss or damage to all OPTG Equipment provided to Customer, from the time of delivery to Customer until return delivery to OPTG or OPTG’s designee, ordinary wear and tear excepted. The fees associated with the Equipment shall commence on the date the Equipment is delivered to Customer and OPTG activates the Services for that Equipment and end when Customer either exercises any option it may have to purchase the Equipment at the end of any lease term, or Customer returns the Equipment in good working order and physical condition as determined by OPTG, ordinary wear and tear excepted. Except as otherwise provided with respect to the exercise of any option granted to Customer to purchase any equipment for a different price, Customer understands and agrees to pay OPTG the standard purchase price on all Equipment not returned to OPTG within ten (10) days of the termination of this Agreement. Customer accepts all liability for loss or damage to the Equipment. Customer understands and accepts they will be invoiced for any and all repairs including replacement parts for any lost or damaged Equipment. If parts of the Equipment are not individually available from the manufacturer, Equipment returned without all of their accessories shall be billed to Customer at the standard purchase price paid by OPTG for the Equipment. Customer shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances, and regulations in any way relating to the possession, use, or maintenance of the Equipment.
2.4 Restrictions on Use. Customer shall not have any right to receive, use or examine any object code, source code or design documentation relating to the Services or any software utilized by the Services. Customer may not copy the Services, in whole or in part. The Services shall not be re-sold, rented, distributed or transferred by Customer to any third party. Customer will not use the Services for the benefit of third parties, except Customer Affiliates at the Sites. Customer shall not itself, or permit any other party to: (a) reverse engineer, reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Services by any means whatsoever; (b) develop methods to enable any third party to use the Services, in whole or in part; (c) incorporate all or any portion of the Services into any other service or product or create any derivative work; (d) use the Services for timesharing, service bureau, subscription server, or rental use; or (e) publish or otherwise disseminate any results of any tests or operating results of the Services.
2.5 Customer Responsibilities. Customer shall: (a) provide OPTG with complete and accurate documentation and information as may be required by OPTG to perform the Services; (b) provide trained staff to assist as necessary and to answer questions that may arise in connection with the installation, provisioning, and ongoing performance of the Services; (c) be responsible and liable for all use of the Services by its Users and compliance by its Users with this Agreement, OPTG’s use policies, and applicable Third Party Agreements; (d) at its expense, promptly obtain, install, and maintain any equipment, software and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating systems, networking, web servers, internet access, long distance and local telephone service, and maintain the compatibility of such equipment and software with the Services during the Term of this Agreement; (e) not use the Services: (i) in any manner which interferes unreasonably with the Services or OPTG’s provision of similar services to other parties; (ii) for any purpose or in any manner directly or indirectly in violation of applicable laws or industry standards; or (iii) in violation of any third party rights. Any delays due to the acts or omissions of Customer or any User will be a billable event and may give rise to additional technician time and expenses billed to Customer.
2.6 Compliance with Laws. Customer acknowledges and agrees that it is solely Customer’s, and not OPTG’s, responsibility to comply with all laws, regulations and standards, including without limitation, the PCI DSS, applicable to Customer’s business.
2.7 Managed Services Conditions. If Managed Services are included in the Services ordered by Customer hereunder, the following Sections 2.7.1 and 2.7.2 shall apply:
2.7.1 Third-Party Application Support. OPTG will work on Customer’s behalf under Customer’s current and valid third-party application support agreement(s). OPTG will not be responsible for any losses caused by third party support issues including time, data loss, or other issues. Should OPTG work with Customer’s third-party application vendor under a current support contract, the time will be limited to one (1) hour per month (remote or onsite). Any additional time spent on any issue will be billed out at Customer’s designated hourly rate. If Customer does not have a current support agreement with that vendor, OPTG will use commercially reasonable efforts to work on the issue under the OPTG contract. Should OPTG work with Customer’s third-party vendor without a current support contract, time will be taken off Customer’s allotted engineering hours. Any additional time spent on any issue will be billed out at Customer’s designated hourly rate. OPTG will not be responsible for purchasing or the continuation of Customer’s current or new support agreement. Support will vary per application or support agreement. OPTG will not be responsible for any additional charges the third-party application vendor may charge for a support call. Any third-party application and/or database housed on a virtual server (Hyper-V) must have a valid support contract.
2.7.2 Network Device Support. OPTG will work on Customer’s behalf under Customer’s current and valid network device manufacturer’s support agreement. Should OPTG work with such manufacturer under a current support contract, the time will be limited to one (1) hour per month (remote or onsite). Any additional time spent on any issue will be billed out by OPTG at Customer’s designated hourly rate. If Customer does not have a current support agreement with its network device manufacturer, OPTG will use commercially reasonable efforts to work on the issue under OPTG’s contract. OPTG will not be responsible for any network device support issues including equipment failure, data loss, or other issues. Should OPTG work with Customer’s network device manufacturer without a current support contract, time will be taken off Customer’s allotted engineering hours. Any additional time spent on any issue will be billed out by OPTG at Customer’s designated hourly rate. OPTG will not be liable for purchasing or the continuation of Customer’s current or new network device manufacturer’s support agreement. Support will vary per manufacturer. OPTG will not be responsible for any additional charges the manufacturer may charge for a support call. Any third-party application and/or database housed on a virtual server (Hyper-V) must have a valid support contract. These devices are not covered for 24/7 monitoring.
2.8 Emergency Services – 911 Dialing: Customer acknowledges that any portion of the Services that are telecom services do NOT support traditional 911 or E911 access to emergency services. OPTG offers a limited Emergency Calling Service available only on select OPTG lines and devices. 911 Dialing Requires Registration/Alternative 911 Arrangements. Customer acknowledges and understands that 911 dialing does not function unless Customer has successfully registered Customer’s telephone location by designating the correct physical address of each telephone. Customer understands that a failure to provide the correct physical address and current location of the Equipment will result in 911 communications being routed to the incorrect local emergency service provider or 911 Support.
3.0 Fees and Charges: Billing: Payment: Taxes
3.1 Fees and charges. Customer shall pay to OPTG the fees, charges, and expenses set forth in Exhibit B. All MRC shall be invoiced monthly in advance beginning on the “Billing Date” which shall be: (a) five (5) days after the Effective Date; or (b) for Sites added at a later time, five (5) days after written agreement of the Parties to add such Sites. All NRC, other one-time fees and charges, and any other fees and charges shall be invoiced as incurred.
3.2 Travel and living expenses. Customer shall reimburse OPTG for reasonable travel and living expenses incurred by OPTG in connection with the Services. Such expenses are subject to Customer’s prior written approval.
3.3 Currency. All monetary amounts stated herein are in United States Dollars and shall be paid from within the United States, unless expressly stated otherwise.
3.4 Changes. OPTG may change the fees and charges at the start of the next Site Renewal Term for Services at a Site by providing Customer at least ninety (90) days prior written notice of such changes. Customer may, if such fee and charge changes are not acceptable, terminate this Agreement for Services at such Site at the end of the applicable Initial Site Term or Site Renewal Term upon at least sixty (60) days prior written notice to OPTG.
3.5 Billing and payment. All amounts shall be due and payable net thirty (30) days after the invoice date. All amounts not paid by the due date thereof shall be subject to a service charge of the lower of one and one-half percent (1 ½%) per month or the highest permissible rate under applicable law. Should Customer have a good faith dispute concerning an amount invoiced, Customer shall pay the undisputed portion of the invoice and promptly notify OPTG in writing of the amount and nature of the dispute. The Parties shall cooperate in good faith to resolve the dispute. OPTG reserves the right to suspend or terminate any or all Services provided hereunder if Customer is more than sixty (60) days overdue on invoiced amounts that have not been disputed in good faith as described above.
3.6 Services Suspension. Consistent with the provisions of Section 3.5 above, any failure by Customer to pay any amount when due may result in suspension of the Services. A reinstatement fee equal to ten percent (10%) of the amount past due shall apply for all suspensions of Services. Services shall be reinstated upon receipt of such reinstatement fee, any late charges or services charges, and all other sums due. Any suspension of Services shall be without prejudice to OPTG’s other rights and remedies under this Agreement.
3.7 Taxes. All prices, fees, and charges are exclusive of all applicable federal, state, and local taxes including, without limitation, sales, use, property, value added, goods and services, excise, and similar taxes that may be applicable to the Services or the Equipment, (the “Taxes”), and all such Taxes shall be assumed and paid by Customer. Customer is responsible for the payment of all Taxes and agrees to indemnify and hold One Point Technology Group LLC harmless from any such Taxes as well as from any liens, levies, or other related charges arising from the Taxes. In the event that OPTG determines that any such taxes are subject to withholding requirements, OPTG may bill Customer for such taxes, and Customer shall promptly pay the amount billed. If any such tax for which Customer is responsible hereunder is paid by OPTG, Customer agrees to promptly reimburse OPTG therefor.
4.0 Moves; Adds; Changes. In the event Customer requests any moves, additions, or other changes (collectively called “MACs”) to the Services or the Equipment (examples: a change of the location(s) of the Site(s) where the Services or Equipment are delivered or located; or adding new Site(s) to receive the Services or Equipment), Customer shall provide OPTG at least thirty (30) days prior written notice of the requested MACs, and OPTG will provide Customer a quote of the applicable fees and charges per OPTG’s Change Order process. No MACs will be implemented until a written Change Order is signed by the Parties. Each properly executed Change Order shall constitute an amendment to this Agreement.
5.0 Term and Termination.
5.1 Term of Agreement; Site Terms. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated for cause under Section 5.3, shall remain in effect for so long as any Site Term(s) remain in effect (the “Term”). The “Site Initial Term” for each Site shall commence on the Billing Date for such Site and continue thereafter for thirty-six (36) months. After the Site Initial Term, the Site Term for such Site shall automatically renew for successive twelve (12) month renewal terms (each a “Site Renewal Term”), beginning on each anniversary of the applicable Billing Date. The Site Initial Term and any Site Renewal Term(s) are collectively called the “Site Term” for each Site.
5.2 Termination of Site Term. Either Party may terminate this Agreement for a given Site effective at the end of the applicable Site Term, by providing the other Party at least thirty (30) days written notice prior to the expiration of the current Site Term for such Site. After termination for a given Site, this Agreement shall remain in effect for the remaining Sites.
5.3 Termination for Cause. This Agreement may be terminated for all Sites upon written notice: (i) from OPTG in the event of Customer’s failure to pay fees or other charges when due; (ii) from a Party if the other Party breaches any material term or condition of this Agreement and such failure is not cured within thirty (30) days of written notice from the non-breaching Party specifying the non-performance; (iii) from a Party, if any proceedings under the U.S. Bankruptcy Code or other insolvency laws shall be instituted by or against the other Party, or if a receiver shall be appointed for the other Party or any of its assets; or (iv) from a Party if the other Party shall make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts as they come due.
5.4 Effects of Termination.
5.4.1 Site. Upon termination of the Site Term for a Site: (i) OPTG shall cease to provide the Services to the Site; (ii) Customer shall immediately pay all fees and charges owed hereunder applicable to the Site; (iii) subject to any option to purchase granted to Customer, Customer shall immediately return to OPTG all OPTG Equipment (in good working order, ordinary wear and tear excepted) applicable to the Site; and(iv) each Party shall destroy or promptly return to the other Party all copies, partial copies and any documentation or materials evidencing the other Party’s Confidential Information, as defined in Section 6.1, except to the extent that such Confidential Information must be retained by a Party for purposes of performing its obligations under this Agreement with respect to other Sites that continue to receive Services.
5.4.2 Agreement. Upon termination of this Agreement: (i) OPTG shall cease to provide all Services; (ii) Customer shall immediately pay all fees and charges owed hereunder; (iii) subject to any option to purchase granted to Customer, Customer shall immediately return to OPTG, at Customer’s expense, all OPTG Equipment (in good working order, ordinary wear and tear excepted); and (iv) each Party shall destroy or promptly return to the other Party all of such Party’s Confidential Information, including without limitation, all copies, partial copies and any documentation or materials evidencing the other Party’s Confidential Information. In the event of termination of this Agreement other than for cause under Section 5.3, OPTG will use commercially reasonable efforts for a thirty (30) day period following termination to assist Customer in the orderly termination of Services, including timely transfer of the Services to another designated provider, provided that Customer agrees to pay OPTG for the actual costs of rendering such assistance at OPTG’s then-current rates. Any termination for cause under Section 5.3 shall be without prejudice to any other rights or remedies which OPTG may have against Customer, and shall not entitle Customer to a refund, in whole or in part, of any fees or charges. No remedy referred to in this Section is intended to be exclusive, but shall be cumulative and in addition to any other remedy referred to herein or available to OPTG at law or in equity.
If Customer terminates this Agreement prior to the end of the then current term for a reason other than for cause, Customer shall be liable for a termination fee equal to: (i) all charges, taxes, expenses, and fees, including without limitation, all unbilled charges and disconnect fees; plus (ii) an amount equal to the number of months remaining in the then current term multiplied by the average monthly recurring charges on the account (collectively, the “Termination Fee”). The Termination Fee shall be immediately due and payable to OPTG.
6.0 Confidentiality.
6.1 Confidential Information. Each Party (the “Disclosing Party”) may disclose Confidential Information to the other Party (the “Receiving Party”). “Confidential Information” shall mean that information each Party receives from the other Party which is marked as confidential or is reasonably understood to be considered confidential or proprietary from its nature or from the circumstances surrounding its disclosure.
6.2 Nondisclosure; Use Restrictions. The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence using the same degree of care to avoid disclosure or unauthorized use as it uses for its own confidential, proprietary, and trade secret information, but in no case less than a reasonable degree of care. All Confidential Information of the Disclosing Party shall be used by Receiving Party only in connection with performing its obligations under this Agreement and shall only be disclosed to those individuals who must necessarily receive the Confidential Information to enable performance under this Agreement and are legally bound by non-disclosure and non-use restrictions consistent with this Section. If either Party becomes aware of an unauthorized disclosure of the other Party’s Confidential Information, it shall immediately notify the other Party.
6.3 Exclusions; Court Orders. The forgoing obligations shall not apply to information that: (i) was in the public domain at the time it was disclosed; (ii) becomes part of the public domain without breach of this Agreement; (iii) is disclosed with the Disclosing Party’s written approval; (iv) was independently developed by the Receiving Party; or (v) is disclosed pursuant to the provisions of applicable law, regulation, or court order. If the Receiving Party is required by government or court order to disclose any Confidential Information of the other Party, the Receiving Party shall promptly notify the Disclosing Party of such request so the Disclosing Party may seek a protective order.
7.0 Intellectual Property. OPTG and its vendors and suppliers retain all right, title, and interest in the Services, related documentation, deliverables, all derivatives, improvements, and modifications thereto, and all related intellectual property rights related thereto, contained therein and newly created in the future, and Customer shall not have or obtain any title, ownership, or other proprietary interest therein. OPTG shall not acquire any right, title, or interest in Customer’s proprietary information which may be transmitted or otherwise managed via the Services. SaaS and PaaS cloud based Services are provided on a subscription basis, are limited to a right to access and use such Services and do not grant a license to possess a copy of the Services or any software utilized by the Services.
8.0 Limited Warranty; Disclaimer.
8.1 Warranty; Remedy. OPTG shall use commercially reasonable efforts consistent with prevailing industry standards to provide the Services (exclusive of Third Party Products) in a professionally diligent manner. OPTG’s sole obligation and liability and Customer’s sole and exclusive remedy under the foregoing limited warranty are strictly and exclusively limited to either the correction of any error(s) in the Services which are made known to OPTG by written notice from Customer given within thirty (30) days of such error(s), with the notice describing such error(s) in detail or, at the election of OPTG, a pro rata refund of the fees paid by Customer for the particular portion of the Services which is in error.
8.2 Limitations. The warranty under Section 8.1 does not apply to any error(s) in the Services resulting from any: (a) use of any Services not in accordance with this Agreement, including Customer’s operation or use of the Services other than in accordance with applicable documentation or design, or with hardware, software, or other technology not recommended, supplied, or approved by OPTG; (b) modification, damage, misuse of any Services or OPTG Equipment or other action of Customer or any third party; or (d) combination of any Services or OPTG Equipment with any goods, services, or other items provided by Customer or any third party. Further, OPTG does not warrant that the Services or any other items furnished by OPTG under this Agreement are uninterrupted or free from bugs, errors, defects, or deficiencies.
8.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES, THIRD PARTY PRODUCTS, AND ANY OTHER ITEMS PROVIDED BY OPTG ARE PROVIDED “AS IS”. OPTG DOES NOT MAKE AND DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES, OPTG EQUIPMENT, THIRD-PARTY PRODUCTS, OR ANY OTHER ITEMS FURNISHED BY OR ON BEHALF OF OPTG UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE).
8.4 Third Party Products. Customer’s remedies with respect to Third Party Products will be limited to whatever recourse may be available to Customer against the third party provider of such Third Party Products.
9.0 Indemnification. Customer agrees to defend, indemnify, and hold harmless the OPTG Parties (as defined in Section 10) from and against all claims, actions, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) arising or resulting from: (i) Customer’s handling, storage, transmission. Loss, disclosure or possession of information, data (including personal and financial data of consumers, customers, employees and others), messages or other content or assets, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission, or possession of information that contains viruses, malware, or other destructive code, media, or any unlawful content; (ii) Customer’s or third parties’ reliance on the Services or on information obtained therefrom; (iii) Customer’s breach of any software licensing or other requirements of third parties, including without limitation, under Third Party Agreements; (iv) Customer’s failure to comply with or breach of any provision of this Agreement; (v) Customer’s failure to obtain permits, licenses, or consents that Customer may be required to obtain to enable OPTG to provide Services (e.g., landlord permissions, wiring permits, etc.); (vii) Customer’s modification of the Services or Customer’s use of such Services other than in accordance with their specifications and documentation; and/or (viii) Customer’s failure to comply with all laws, regulations, and standards, including without limitation, the PCI DSS, applicable to its business.
10.0 Limitations of liability.
10.1 Liability Limitation. THE CUMULATIVE LIABILITY OF OPTG, ITS SUPPLIERS (INCLUDING SUPPLIERS OF THIRD PARTY PRODUCTS) AND SUBCONTRACTORS AND THEIR RESPECTIVE AFFILIATES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS AND EMPLOYEES (COLLECTIVELY THE “OPTG PARTIES”) FOR ANY AND ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, RESULTING FROM OR CONNECTED WITH THIS AGREEMENT OR THE SERVICES, SHALL NOT EXCEED THE LESSER OF (I) CUSTOMER’S ACTUAL DIRECT DAMAGES ARISING THEREFROM, OR (II) THE FEES PAID BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE FIRST SUCH CLAIM, FOR THE SPECIFIC SERVICES THAT ALLEGEDLY GAVE RISE TO THE CLAIM.
10.2 No Consequential Damages. IN NO EVENT SHALL THE OPTG PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOST BUSINESS, LOST PROFITS, AND OTHER ECONOMIC DAMAGES, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages exists for the purpose of allocating the risks of this Agreement between the Parties. The pricing that OPTG offers Customer reflects this allocation and constitutes an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
11.0 Export control laws. OPTG’s responsibility for delivery is limited to the delivery of the Services to Customer in the United States. OPTG will not be responsible for obtaining any export licenses or re-export licenses which may be required for any subsequent shipping of the Services and Customer shall not export or re-export the Services in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
12.0 Notices. All notices, requests, demands or other communications, other than routine operation communications required or permitted to be given by one Party to the other shall be given in writing and sent (postage prepaid with return receipt or delivery confirmation requested) by registered mail, certified mail, or by nationally recognized courier service (e.g. Federal Express, UPS, etc.), and shall be delivered addressed as set forth on the first page of this Agreement, or to such other address as either Party may notify the other in accordance with this Section. Such notices, requests, demands or other communications shall be deemed to have been received upon delivery thereof as evidenced by return receipt or delivery confirmation.
13.0 Miscellaneous.
13.1 Independent Contractors. The relationship of the Parties created by this Agreement is that of independent contracting parties and not that of employer/employee, principal/agent, partnership, joint venture, or representative of the other. Neither Party is authorized to make any representation, contract, or commitment on behalf of the other Party.
13.2 Excusable Delay. Neither Party will be liable for any failure of or delay in the performance of its obligations under this Agreement to the extent due to a condition beyond its reasonable control including, without limitation, natural disaster, fires, wars, riots, accidents, government action or failure to act, inability to obtain labor, materials, or equipment, power shortage, equipment failure or breakdown, public health emergency, strike or other labor disruption, or failure of communications infrastructure (collectively “Excusable Delay”). Each Party will use its best efforts to minimize the duration and consequences of any Excusable Delay.
13.3 Offset. In addition to any right of set off or recoupment under law, all amounts due to Customer shall be considered net of indebtedness of Customer to OPTG, and OPTG shall have the right to set off against or to recoup such amounts from any amounts due to Customer from OPTG.
13.4 Assignment. OPTG may freely assign its rights and delegate its responsibilities under this Agreement. Customer shall not assign this Agreement, whether by merger, change of control, or otherwise, without the prior written consent of OPTG, which consent shall not be unreasonably withheld. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
13.5 Waiver; Severability. Any delay or failure by a Party to enforce any provision hereof will not constitute a waiver of its rights to enforce such provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement will be construed as if such provision were deleted, so long as doing so does not materially frustrate the intention of the Parties in entering into this Agreement.
13.6 Governing Law; Venue. This Agreement is to be construed according to the laws of the State of Michigan and the United States of America, excluding the provisions of the United Nations Convention on Contracts for the international Sale of Goods and any conflict of law provisions that would require application of another choice of law. No action arising out of this Agreement, regardless of form, may be brought by either Party more than one (1) year after the cause of action has accrued.
13.7 Survival. The terms and conditions of this Agreement regarding payment, ownership of intellectual property, nondisclosure and non-use of Confidential Information, warranty, indemnification, liability limitation, and all others that by their sense and context are intended to survive the execution, performance, and termination of this Agreement, shall survive termination of this Agreement and continue in effect.
13.8 Headings. Section headings are for convenience only and will not be construed as a part of this Agreement.
13.9 Entire Agreement; Amendment. This Agreement, including all exhibits, schedules, attachments, addenda and addendums hereto, constitutes the complete and exclusive statement of the terms hereof, and supersedes all prior or contemporaneous oral and written statements of any kind made by the Parties or their representatives with respect to the subject matter hereof. It is expressly agreed that if Customer issues a purchase order or other document in connection with this Agreement, such document will be deemed to be for Customer’s internal use only and any provisions contained therein shall not amend or be used in interpreting this Agreement. This Agreement may only be amended in a writing signed by authorized representatives of both of the Parties that makes specific reference to this Agreement.
13.10 Counterparts; Electronic Copies. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. For the purposes hereof, a facsimile or scanned copy of this Agreement, including all pages hereof, shall be deemed an original.
13.11 Waiver Of Trial By Jury. THE PARTIES EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES THEIR RIGHT TO A TRIAL BY JURY IN ANY ACTION, INCLUDING ANY CLAIM, COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM (EACH A “CLAIM”) THAT IS BASED ON, ARISES OUT OF, OR RELATES TO THIS AGREEMENT.
13.12 Non-Solicitation of Employees. Customer agrees that it will not solicit or offer employment to OPTG’s employees or sub-contractors, whether directly or indirectly, within one (1) year of the termination of this Agreement, except with OPTG’s prior written approval in each case.
“Customer Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Customer and to which OPTG provides Services hereunder. All Customer Affiliates are included within the definition of “Customer” and all references to “Customer” in this Agreement are deemed to include all Customer Affiliates.
“Merchant” means a party that accepts credit cards in the course of its business.
“Merchant Identification Number” or “MID” is a unique number assigned to a Merchant account to identify it throughout the course of processing activities.
“OPTG Equipment” means any equipment deployed to Customers to enable OPTG to provide the Services which is either: (i) owned by OPTG; or (ii) is owned by OPTG agents, suppliers, or subcontractors, and as between OPTG and Customer, shall be deemed owned by OPTG. The Firewall is OPTG equipment.
“PCI DSS” means the PCI Data Security Standard promulgated by the Payment Card Industry (PCI) Security Standards Council, as it may be amended, updated, and modified from time to time, setting forth best practices for protecting customers’ credit card information.
“Services” means the products and services (including Third Party Products) ordered by Customer and provided by OPTG for the Site(s) pursuant to Exhibit B to this Agreement. OPTG may change the Services upon thirty (30) days’ notice to Customer, but any such change shall not materially degrade the Services during a period in which Customer has paid for the Services.
“Site” means each physical location(s) that will receive the Services, as identified on Exhibit A and in the Site Assessment Form attached as Exhibit C to this Agreement. Each Site must be identified by a unique MID.
“Site Term,” “Site Initial Term,” “Site Renewal Term” and “Term” have the meanings assigned to them in Section 5.1 of this Agreement.
“Third Party Agreement” means any end user license agreement, terms of service, terms of use, privacy policy, warranty, or other agreement or terms applicable to Third Party Products.
“Third Party Products” means any third party equipment, software and services, including without limitation, cloud based services, platforms and solutions, which Customer purchases, leases, subscribes to, licenses, accesses or uses as part of the Services including, without limitation, the PCI Portal, the BPP, the Event Logging solution and the Fortinet Firewall.
“User” means each individual Customer employee, contractor, agent or representative who receives and uses Services under this Agreement.
2.0 Services Conditions and Restrictions
2.1 Use of Subcontractors. OPTG may, at its option, provide and perform the Services through its affiliates, agents, suppliers or subcontractors.
2.2 Third Party Agreements; End User Agreements. Notwithstanding anything to the contrary in this Agreement, use by Customer and its Users of Third Party Products shall be subject to the terms of any applicable Third Party Agreements. Prior to, or as a result of, implementation, installation or use of the Services, Customer and its Users may be required to agree to or sign, or be deemed to have accepted and agreed to, one or more Third Party Agreements. Customer agrees that it is bound by and shall comply with all Third Party Agreements.
2.3 OPTG Equipment. Some of the Services will involve Customer’s use of OPTG Equipment at the Site(s). All OPTG Equipment provided by OPTG to Customer in connection with the Services, shall at all times be and remain the sole property of OPTG, and when provided to Customer is provided solely on a leased basis. For any leased equipment, at the conclusion of any lease term listed in Exhibit B to the to Master Services Agreement, Customer shall have the option to purchase the equipment for a purchase price of $1.00, provided that Customer is then current in its payments to OPTG and is otherwise not in material default of any of the provisions of this Agreement. During the lease term Customer shall bear all risk of loss or damage to all OPTG Equipment provided to Customer, from the time of delivery to Customer until return delivery to OPTG or OPTG’s designee, ordinary wear and tear excepted. The fees associated with the Equipment shall commence on the date the Equipment is delivered to Customer and OPTG activates the Services for that Equipment and end when Customer either exercises any option it may have to purchase the Equipment at the end of any lease term, or Customer returns the Equipment in good working order and physical condition as determined by OPTG, ordinary wear and tear excepted. Except as otherwise provided with respect to the exercise of any option granted to Customer to purchase any equipment for a different price, Customer understands and agrees to pay OPTG the standard purchase price on all Equipment not returned to OPTG within ten (10) days of the termination of this Agreement. Customer accepts all liability for loss or damage to the Equipment. Customer understands and accepts they will be invoiced for any and all repairs including replacement parts for any lost or damaged Equipment. If parts of the Equipment are not individually available from the manufacturer, Equipment returned without all of their accessories shall be billed to Customer at the standard purchase price paid by OPTG for the Equipment. Customer shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances, and regulations in any way relating to the possession, use, or maintenance of the Equipment.
2.4 Restrictions on Use. Customer shall not have any right to receive, use or examine any object code, source code or design documentation relating to the Services or any software utilized by the Services. Customer may not copy the Services, in whole or in part. The Services shall not be re-sold, rented, distributed or transferred by Customer to any third party. Customer will not use the Services for the benefit of third parties, except Customer Affiliates at the Sites. Customer shall not itself, or permit any other party to: (a) reverse engineer, reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Services by any means whatsoever; (b) develop methods to enable any third party to use the Services, in whole or in part; (c) incorporate all or any portion of the Services into any other service or product or create any derivative work; (d) use the Services for timesharing, service bureau, subscription server, or rental use; or (e) publish or otherwise disseminate any results of any tests or operating results of the Services.
2.5 Customer Responsibilities. Customer shall: (a) provide OPTG with complete and accurate documentation and information as may be required by OPTG to perform the Services; (b) provide trained staff to assist as necessary and to answer questions that may arise in connection with the installation, provisioning, and ongoing performance of the Services; (c) be responsible and liable for all use of the Services by its Users and compliance by its Users with this Agreement, OPTG’s use policies, and applicable Third Party Agreements; (d) at its expense, promptly obtain, install, and maintain any equipment, software and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating systems, networking, web servers, internet access, long distance and local telephone service, and maintain the compatibility of such equipment and software with the Services during the Term of this Agreement; (e) not use the Services: (i) in any manner which interferes unreasonably with the Services or OPTG’s provision of similar services to other parties; (ii) for any purpose or in any manner directly or indirectly in violation of applicable laws or industry standards; or (iii) in violation of any third party rights. Any delays due to the acts or omissions of Customer or any User will be a billable event and may give rise to additional technician time and expenses billed to Customer.
2.6 Compliance with Laws. Customer acknowledges and agrees that it is solely Customer’s, and not OPTG’s, responsibility to comply with all laws, regulations and standards, including without limitation, the PCI DSS, applicable to Customer’s business.
2.7 Managed Services Conditions. If Managed Services are included in the Services ordered by Customer hereunder, the following Sections 2.7.1 and 2.7.2 shall apply:
2.7.1 Third-Party Application Support. OPTG will work on Customer’s behalf under Customer’s current and valid third-party application support agreement(s). OPTG will not be responsible for any losses caused by third party support issues including time, data loss, or other issues. Should OPTG work with Customer’s third-party application vendor under a current support contract, the time will be limited to one (1) hour per month (remote or onsite). Any additional time spent on any issue will be billed out at Customer’s designated hourly rate. If Customer does not have a current support agreement with that vendor, OPTG will use commercially reasonable efforts to work on the issue under the OPTG contract. Should OPTG work with Customer’s third-party vendor without a current support contract, time will be taken off Customer’s allotted engineering hours. Any additional time spent on any issue will be billed out at Customer’s designated hourly rate. OPTG will not be responsible for purchasing or the continuation of Customer’s current or new support agreement. Support will vary per application or support agreement. OPTG will not be responsible for any additional charges the third-party application vendor may charge for a support call. Any third-party application and/or database housed on a virtual server (Hyper-V) must have a valid support contract.
2.7.2 Network Device Support. OPTG will work on Customer’s behalf under Customer’s current and valid network device manufacturer’s support agreement. Should OPTG work with such manufacturer under a current support contract, the time will be limited to one (1) hour per month (remote or onsite). Any additional time spent on any issue will be billed out by OPTG at Customer’s designated hourly rate. If Customer does not have a current support agreement with its network device manufacturer, OPTG will use commercially reasonable efforts to work on the issue under OPTG’s contract. OPTG will not be responsible for any network device support issues including equipment failure, data loss, or other issues. Should OPTG work with Customer’s network device manufacturer without a current support contract, time will be taken off Customer’s allotted engineering hours. Any additional time spent on any issue will be billed out by OPTG at Customer’s designated hourly rate. OPTG will not be liable for purchasing or the continuation of Customer’s current or new network device manufacturer’s support agreement. Support will vary per manufacturer. OPTG will not be responsible for any additional charges the manufacturer may charge for a support call. Any third-party application and/or database housed on a virtual server (Hyper-V) must have a valid support contract. These devices are not covered for 24/7 monitoring.
2.8 Emergency Services – 911 Dialing: Customer acknowledges that any portion of the Services that are telecom services do NOT support traditional 911 or E911 access to emergency services. OPTG offers a limited Emergency Calling Service available only on select OPTG lines and devices. 911 Dialing Requires Registration/Alternative 911 Arrangements. Customer acknowledges and understands that 911 dialing does not function unless Customer has successfully registered Customer’s telephone location by designating the correct physical address of each telephone. Customer understands that a failure to provide the correct physical address and current location of the Equipment will result in 911 communications being routed to the incorrect local emergency service provider or 911 Support.
3.0 Fees and Charges: Billing: Payment: Taxes
3.1 Fees and charges. Customer shall pay to OPTG the fees, charges, and expenses set forth in Exhibit B. All MRC shall be invoiced monthly in advance beginning on the “Billing Date” which shall be: (a) five (5) days after the Effective Date; or (b) for Sites added at a later time, five (5) days after written agreement of the Parties to add such Sites. All NRC, other one-time fees and charges, and any other fees and charges shall be invoiced as incurred.
3.2 Travel and living expenses. Customer shall reimburse OPTG for reasonable travel and living expenses incurred by OPTG in connection with the Services. Such expenses are subject to Customer’s prior written approval.
3.3 Currency. All monetary amounts stated herein are in United States Dollars and shall be paid from within the United States, unless expressly stated otherwise.
3.4 Changes. OPTG may change the fees and charges at the start of the next Site Renewal Term for Services at a Site by providing Customer at least ninety (90) days prior written notice of such changes. Customer may, if such fee and charge changes are not acceptable, terminate this Agreement for Services at such Site at the end of the applicable Initial Site Term or Site Renewal Term upon at least sixty (60) days prior written notice to OPTG.
3.5 Billing and payment. All amounts shall be due and payable net thirty (30) days after the invoice date. All amounts not paid by the due date thereof shall be subject to a service charge of the lower of one and one-half percent (1 ½%) per month or the highest permissible rate under applicable law. Should Customer have a good faith dispute concerning an amount invoiced, Customer shall pay the undisputed portion of the invoice and promptly notify OPTG in writing of the amount and nature of the dispute. The Parties shall cooperate in good faith to resolve the dispute. OPTG reserves the right to suspend or terminate any or all Services provided hereunder if Customer is more than sixty (60) days overdue on invoiced amounts that have not been disputed in good faith as described above.
3.6 Services Suspension. Consistent with the provisions of Section 3.5 above, any failure by Customer to pay any amount when due may result in suspension of the Services. A reinstatement fee equal to ten percent (10%) of the amount past due shall apply for all suspensions of Services. Services shall be reinstated upon receipt of such reinstatement fee, any late charges or services charges, and all other sums due. Any suspension of Services shall be without prejudice to OPTG’s other rights and remedies under this Agreement.
3.7 Taxes. All prices, fees, and charges are exclusive of all applicable federal, state, and local taxes including, without limitation, sales, use, property, value added, goods and services, excise, and similar taxes that may be applicable to the Services or the Equipment, (the “Taxes”), and all such Taxes shall be assumed and paid by Customer. Customer is responsible for the payment of all Taxes and agrees to indemnify and hold One Point Technology Group LLC harmless from any such Taxes as well as from any liens, levies, or other related charges arising from the Taxes. In the event that OPTG determines that any such taxes are subject to withholding requirements, OPTG may bill Customer for such taxes, and Customer shall promptly pay the amount billed. If any such tax for which Customer is responsible hereunder is paid by OPTG, Customer agrees to promptly reimburse OPTG therefor.
4.0 Moves; Adds; Changes. In the event Customer requests any moves, additions, or other changes (collectively called “MACs”) to the Services or the Equipment (examples: a change of the location(s) of the Site(s) where the Services or Equipment are delivered or located; or adding new Site(s) to receive the Services or Equipment), Customer shall provide OPTG at least thirty (30) days prior written notice of the requested MACs, and OPTG will provide Customer a quote of the applicable fees and charges per OPTG’s Change Order process. No MACs will be implemented until a written Change Order is signed by the Parties. Each properly executed Change Order shall constitute an amendment to this Agreement.
5.0 Term and Termination.
5.1 Term of Agreement; Site Terms. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated for cause under Section 5.3, shall remain in effect for so long as any Site Term(s) remain in effect (the “Term”). The “Site Initial Term” for each Site shall commence on the Billing Date for such Site and continue thereafter for thirty-six (36) months. After the Site Initial Term, the Site Term for such Site shall automatically renew for successive twelve (12) month renewal terms (each a “Site Renewal Term”), beginning on each anniversary of the applicable Billing Date. The Site Initial Term and any Site Renewal Term(s) are collectively called the “Site Term” for each Site.
5.2 Termination of Site Term. Either Party may terminate this Agreement for a given Site effective at the end of the applicable Site Term, by providing the other Party at least thirty (30) days written notice prior to the expiration of the current Site Term for such Site. After termination for a given Site, this Agreement shall remain in effect for the remaining Sites.
5.3 Termination for Cause. This Agreement may be terminated for all Sites upon written notice: (i) from OPTG in the event of Customer’s failure to pay fees or other charges when due; (ii) from a Party if the other Party breaches any material term or condition of this Agreement and such failure is not cured within thirty (30) days of written notice from the non-breaching Party specifying the non-performance; (iii) from a Party, if any proceedings under the U.S. Bankruptcy Code or other insolvency laws shall be instituted by or against the other Party, or if a receiver shall be appointed for the other Party or any of its assets; or (iv) from a Party if the other Party shall make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts as they come due.
5.4 Effects of Termination.
5.4.1 Site. Upon termination of the Site Term for a Site: (i) OPTG shall cease to provide the Services to the Site; (ii) Customer shall immediately pay all fees and charges owed hereunder applicable to the Site; (iii) subject to any option to purchase granted to Customer, Customer shall immediately return to OPTG all OPTG Equipment (in good working order, ordinary wear and tear excepted) applicable to the Site; and(iv) each Party shall destroy or promptly return to the other Party all copies, partial copies and any documentation or materials evidencing the other Party’s Confidential Information, as defined in Section 6.1, except to the extent that such Confidential Information must be retained by a Party for purposes of performing its obligations under this Agreement with respect to other Sites that continue to receive Services.
5.4.2 Agreement. Upon termination of this Agreement: (i) OPTG shall cease to provide all Services; (ii) Customer shall immediately pay all fees and charges owed hereunder; (iii) subject to any option to purchase granted to Customer, Customer shall immediately return to OPTG, at Customer’s expense, all OPTG Equipment (in good working order, ordinary wear and tear excepted); and (iv) each Party shall destroy or promptly return to the other Party all of such Party’s Confidential Information, including without limitation, all copies, partial copies and any documentation or materials evidencing the other Party’s Confidential Information. In the event of termination of this Agreement other than for cause under Section 5.3, OPTG will use commercially reasonable efforts for a thirty (30) day period following termination to assist Customer in the orderly termination of Services, including timely transfer of the Services to another designated provider, provided that Customer agrees to pay OPTG for the actual costs of rendering such assistance at OPTG’s then-current rates. Any termination for cause under Section 5.3 shall be without prejudice to any other rights or remedies which OPTG may have against Customer, and shall not entitle Customer to a refund, in whole or in part, of any fees or charges. No remedy referred to in this Section is intended to be exclusive, but shall be cumulative and in addition to any other remedy referred to herein or available to OPTG at law or in equity.
If Customer terminates this Agreement prior to the end of the then current term for a reason other than for cause, Customer shall be liable for a termination fee equal to: (i) all charges, taxes, expenses, and fees, including without limitation, all unbilled charges and disconnect fees; plus (ii) an amount equal to the number of months remaining in the then current term multiplied by the average monthly recurring charges on the account (collectively, the “Termination Fee”). The Termination Fee shall be immediately due and payable to OPTG.
6.0 Confidentiality.
6.1 Confidential Information. Each Party (the “Disclosing Party”) may disclose Confidential Information to the other Party (the “Receiving Party”). “Confidential Information” shall mean that information each Party receives from the other Party which is marked as confidential or is reasonably understood to be considered confidential or proprietary from its nature or from the circumstances surrounding its disclosure.
6.2 Nondisclosure; Use Restrictions. The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence using the same degree of care to avoid disclosure or unauthorized use as it uses for its own confidential, proprietary, and trade secret information, but in no case less than a reasonable degree of care. All Confidential Information of the Disclosing Party shall be used by Receiving Party only in connection with performing its obligations under this Agreement and shall only be disclosed to those individuals who must necessarily receive the Confidential Information to enable performance under this Agreement and are legally bound by non-disclosure and non-use restrictions consistent with this Section. If either Party becomes aware of an unauthorized disclosure of the other Party’s Confidential Information, it shall immediately notify the other Party.
6.3 Exclusions; Court Orders. The forgoing obligations shall not apply to information that: (i) was in the public domain at the time it was disclosed; (ii) becomes part of the public domain without breach of this Agreement; (iii) is disclosed with the Disclosing Party’s written approval; (iv) was independently developed by the Receiving Party; or (v) is disclosed pursuant to the provisions of applicable law, regulation, or court order. If the Receiving Party is required by government or court order to disclose any Confidential Information of the other Party, the Receiving Party shall promptly notify the Disclosing Party of such request so the Disclosing Party may seek a protective order.
7.0 Intellectual Property. OPTG and its vendors and suppliers retain all right, title, and interest in the Services, related documentation, deliverables, all derivatives, improvements, and modifications thereto, and all related intellectual property rights related thereto, contained therein and newly created in the future, and Customer shall not have or obtain any title, ownership, or other proprietary interest therein. OPTG shall not acquire any right, title, or interest in Customer’s proprietary information which may be transmitted or otherwise managed via the Services. SaaS and PaaS cloud based Services are provided on a subscription basis, are limited to a right to access and use such Services and do not grant a license to possess a copy of the Services or any software utilized by the Services.
8.0 Limited Warranty; Disclaimer.
8.1 Warranty; Remedy. OPTG shall use commercially reasonable efforts consistent with prevailing industry standards to provide the Services (exclusive of Third Party Products) in a professionally diligent manner. OPTG’s sole obligation and liability and Customer’s sole and exclusive remedy under the foregoing limited warranty are strictly and exclusively limited to either the correction of any error(s) in the Services which are made known to OPTG by written notice from Customer given within thirty (30) days of such error(s), with the notice describing such error(s) in detail or, at the election of OPTG, a pro rata refund of the fees paid by Customer for the particular portion of the Services which is in error.
8.2 Limitations. The warranty under Section 8.1 does not apply to any error(s) in the Services resulting from any: (a) use of any Services not in accordance with this Agreement, including Customer’s operation or use of the Services other than in accordance with applicable documentation or design, or with hardware, software, or other technology not recommended, supplied, or approved by OPTG; (b) modification, damage, misuse of any Services or OPTG Equipment or other action of Customer or any third party; or (d) combination of any Services or OPTG Equipment with any goods, services, or other items provided by Customer or any third party. Further, OPTG does not warrant that the Services or any other items furnished by OPTG under this Agreement are uninterrupted or free from bugs, errors, defects, or deficiencies.
8.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES, THIRD PARTY PRODUCTS, AND ANY OTHER ITEMS PROVIDED BY OPTG ARE PROVIDED “AS IS”. OPTG DOES NOT MAKE AND DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES, OPTG EQUIPMENT, THIRD-PARTY PRODUCTS, OR ANY OTHER ITEMS FURNISHED BY OR ON BEHALF OF OPTG UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE).
8.4 Third Party Products. Customer’s remedies with respect to Third Party Products will be limited to whatever recourse may be available to Customer against the third party provider of such Third Party Products.
9.0 Indemnification. Customer agrees to defend, indemnify, and hold harmless the OPTG Parties (as defined in Section 10) from and against all claims, actions, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) arising or resulting from: (i) Customer’s handling, storage, transmission. Loss, disclosure or possession of information, data (including personal and financial data of consumers, customers, employees and others), messages or other content or assets, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission, or possession of information that contains viruses, malware, or other destructive code, media, or any unlawful content; (ii) Customer’s or third parties’ reliance on the Services or on information obtained therefrom; (iii) Customer’s breach of any software licensing or other requirements of third parties, including without limitation, under Third Party Agreements; (iv) Customer’s failure to comply with or breach of any provision of this Agreement; (v) Customer’s failure to obtain permits, licenses, or consents that Customer may be required to obtain to enable OPTG to provide Services (e.g., landlord permissions, wiring permits, etc.); (vii) Customer’s modification of the Services or Customer’s use of such Services other than in accordance with their specifications and documentation; and/or (viii) Customer’s failure to comply with all laws, regulations, and standards, including without limitation, the PCI DSS, applicable to its business.
10.0 Limitations of liability.
10.1 Liability Limitation. THE CUMULATIVE LIABILITY OF OPTG, ITS SUPPLIERS (INCLUDING SUPPLIERS OF THIRD PARTY PRODUCTS) AND SUBCONTRACTORS AND THEIR RESPECTIVE AFFILIATES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS AND EMPLOYEES (COLLECTIVELY THE “OPTG PARTIES”) FOR ANY AND ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, RESULTING FROM OR CONNECTED WITH THIS AGREEMENT OR THE SERVICES, SHALL NOT EXCEED THE LESSER OF (I) CUSTOMER’S ACTUAL DIRECT DAMAGES ARISING THEREFROM, OR (II) THE FEES PAID BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE FIRST SUCH CLAIM, FOR THE SPECIFIC SERVICES THAT ALLEGEDLY GAVE RISE TO THE CLAIM.
10.2 No Consequential Damages. IN NO EVENT SHALL THE OPTG PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOST BUSINESS, LOST PROFITS, AND OTHER ECONOMIC DAMAGES, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages exists for the purpose of allocating the risks of this Agreement between the Parties. The pricing that OPTG offers Customer reflects this allocation and constitutes an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
11.0 Export control laws. OPTG’s responsibility for delivery is limited to the delivery of the Services to Customer in the United States. OPTG will not be responsible for obtaining any export licenses or re-export licenses which may be required for any subsequent shipping of the Services and Customer shall not export or re-export the Services in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
12.0 Notices. All notices, requests, demands or other communications, other than routine operation communications required or permitted to be given by one Party to the other shall be given in writing and sent (postage prepaid with return receipt or delivery confirmation requested) by registered mail, certified mail, or by nationally recognized courier service (e.g. Federal Express, UPS, etc.), and shall be delivered addressed as set forth on the first page of this Agreement, or to such other address as either Party may notify the other in accordance with this Section. Such notices, requests, demands or other communications shall be deemed to have been received upon delivery thereof as evidenced by return receipt or delivery confirmation.
13.0 Miscellaneous.
13.1 Independent Contractors. The relationship of the Parties created by this Agreement is that of independent contracting parties and not that of employer/employee, principal/agent, partnership, joint venture, or representative of the other. Neither Party is authorized to make any representation, contract, or commitment on behalf of the other Party.
13.2 Excusable Delay. Neither Party will be liable for any failure of or delay in the performance of its obligations under this Agreement to the extent due to a condition beyond its reasonable control including, without limitation, natural disaster, fires, wars, riots, accidents, government action or failure to act, inability to obtain labor, materials, or equipment, power shortage, equipment failure or breakdown, public health emergency, strike or other labor disruption, or failure of communications infrastructure (collectively “Excusable Delay”). Each Party will use its best efforts to minimize the duration and consequences of any Excusable Delay.
13.3 Offset. In addition to any right of set off or recoupment under law, all amounts due to Customer shall be considered net of indebtedness of Customer to OPTG, and OPTG shall have the right to set off against or to recoup such amounts from any amounts due to Customer from OPTG.
13.4 Assignment. OPTG may freely assign its rights and delegate its responsibilities under this Agreement. Customer shall not assign this Agreement, whether by merger, change of control, or otherwise, without the prior written consent of OPTG, which consent shall not be unreasonably withheld. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
13.5 Waiver; Severability. Any delay or failure by a Party to enforce any provision hereof will not constitute a waiver of its rights to enforce such provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement will be construed as if such provision were deleted, so long as doing so does not materially frustrate the intention of the Parties in entering into this Agreement.
13.6 Governing Law; Venue. This Agreement is to be construed according to the laws of the State of Michigan and the United States of America, excluding the provisions of the United Nations Convention on Contracts for the international Sale of Goods and any conflict of law provisions that would require application of another choice of law. No action arising out of this Agreement, regardless of form, may be brought by either Party more than one (1) year after the cause of action has accrued.
13.7 Survival. The terms and conditions of this Agreement regarding payment, ownership of intellectual property, nondisclosure and non-use of Confidential Information, warranty, indemnification, liability limitation, and all others that by their sense and context are intended to survive the execution, performance, and termination of this Agreement, shall survive termination of this Agreement and continue in effect.
13.8 Headings. Section headings are for convenience only and will not be construed as a part of this Agreement.
13.9 Entire Agreement; Amendment. This Agreement, including all exhibits, schedules, attachments, addenda and addendums hereto, constitutes the complete and exclusive statement of the terms hereof, and supersedes all prior or contemporaneous oral and written statements of any kind made by the Parties or their representatives with respect to the subject matter hereof. It is expressly agreed that if Customer issues a purchase order or other document in connection with this Agreement, such document will be deemed to be for Customer’s internal use only and any provisions contained therein shall not amend or be used in interpreting this Agreement. This Agreement may only be amended in a writing signed by authorized representatives of both of the Parties that makes specific reference to this Agreement.
13.10 Counterparts; Electronic Copies. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. For the purposes hereof, a facsimile or scanned copy of this Agreement, including all pages hereof, shall be deemed an original.
13.11 Waiver Of Trial By Jury. THE PARTIES EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES THEIR RIGHT TO A TRIAL BY JURY IN ANY ACTION, INCLUDING ANY CLAIM, COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM (EACH A “CLAIM”) THAT IS BASED ON, ARISES OUT OF, OR RELATES TO THIS AGREEMENT.
13.12 Non-Solicitation of Employees. Customer agrees that it will not solicit or offer employment to OPTG’s employees or sub-contractors, whether directly or indirectly, within one (1) year of the termination of this Agreement, except with OPTG’s prior written approval in each case.