Otis Technologies LLC, Universal Terms of Service for Otis Technologies Software and Services

This Agreement ("Agreement") is by and between Otis Technologies, LLC ("Otis") a Tennessee Limited Liability Company and you, your heirs, agents, successors and assigns ("You" or “Your”)), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Otis software and websites ("Software") and services ("Services") and explains Otis's relation to the Software and/or Services You purchase.

This Agreement as well as any additional Otis policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and Otis concerning Your use of Otis's Software and Services, and supersede and govern all prior proposals, agreements or other communications. All Otis policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference. By purchasing Otis's Software and or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which Otis may establish from time to time, and any agreements that Otis is currently bound by or will be bound by in the future.

In addition to transactions and/date entered by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions and/or data entered on Your behalf by anyone acting as Your Agent, and transactions and/or data entered by anyone who uses the account You've established with Otis, whether or not or not the transactions and/or data were in or on Your behalf.

The General Terms in Section A apply to all customers of Otis. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.

A. GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES

1. TERM OF AGREEMENT; MODIFICATIONS.

You agree that Otis may modify this Agreement and the Services from time to time. You agree to be bound by any changes Otis may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from Otis, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, Otis will not refund any amounts You have paid. You agree that Otis shall not be bound by any representations made by third parties who You may use to purchase Services from Otis, and that any statement of a general nature, which may be posted on Otis’s Web site or contained in Otis’s promotional materials, will not bind Otis. Otis may, at times, offer certain promotions with different charges and features.

2. ACCURATE INFORMATION.

You agree to maintain accurate information concerning your identity and business purpose, You agree that Otis may use and rely on any such information provided by You for all purposes in connection with Your Services, subject to Otis’s Privacy Policy. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Otis has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Otis has the absolute right, in its sole discretion, to terminate its Services and close Your account.

3. PRIVACY.

You can view Otis’s Privacy Policy here, which is incorporated herein by reference, as it is applicable to all Company Software and Services. The Privacy Policy provides Your rights and Company’s responsibilities with regard to Your personal information. Company will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy.

4. ACCOUNT SECURITY.

You agree You are entirely responsible for maintaining the confidentiality of Your login and password (collectively, the "Account Access Information"). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify Otis immediately of any unauthorized use of Your account or any other breach of security. You agree Otis will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by Otis or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. Otis specifically disclaims liability for any activity in Your account, whether authorized by You or not.

5. NO UNLAWFUL CONDUCT OR IMPROPER USE.

As a condition of Your use of Otis’s Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to Otis if, for any reason, Otis takes corrective action with respect to Your improper or illegal use of its Software and/or Services.

Otis reserves the right at all times to disclose any information as Otis deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Otis's sole discretion.

If You have purchased Software and/or Services, Otis has no obligation to monitor Your use of these things. Otis reserves the right to review Your use of the Software and/or Services and to cancel the Services and/or Software subscriptions in its sole discretion. Otis reserves the right to terminate Your access to the Software and/or Services at any time, without notice, for any reason whatsoever.

Otis reserves the right to terminate Services and/or Software subscriptions if Your usage of the Services and/or Software results in, or is the subject of, legal action or threatened legal action, against Otis or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Otis may review every account for abuse of limitations set forth in your plan(s) any time it deems necessary. Limitations that are potential targets for abusive conduct are excessive disk space utilization, excessive projects, designation of activities as projects which do not fit the traditional definition of projects, gaming the system to cause it to perform functions available in higher priced plans which you have not subscribed to, etc. It is a violation of this agreement to sublease or resell your subscription to any third party or to permit any third party to use the system for their projects or business purposes under you account. Otis may terminate or apply additional fees to those accounts that exceed allowed levels or have been deemed abusive.

Except as set forth below, Otis may also cancel Your use of the Software and/or Services, after thirty (30) days, if You are using the Software and/or Services, as determined by Otis in its sole discretion, in association with morally objectionable activities and/or content. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event Otis cancels Your Software subscription(s) and/or Services during the first thirty (30) days after Your purchase, You will receive a refund of any fees paid to Otis in connection with the Software subscriptions and/or Services being canceled. In the event Otis cancels Your Software and/or Services because they are being used in association with morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to Otis if, for any reason, Otis takes corrective action with respect to Your improper or illegal use of its Software and/or Services.

6. INTELLECTUAL PROPERTY.

You agree that Otis holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise specifically agreed in a writing signed by both parties specifically referring to this TOS and specifically acknowledging the wring as an exception to the TOS.. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.

You understand and agree that all content and materials contained in this Agreement, other policies, the Otis Web site, and any affiliated Web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that Otis expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of Otis. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.

7. USE OF OTIS SOFTWARE.

If You have licensed by way of subscription, software from Otis, Otis grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time logged into the same account.

You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.

Otis reserves all rights to the Software. The Software and any copies You are authorized to make are the intellectual property of Otis. The source code and its organization are the exclusive property of Otis and the Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by Otis.

Otis provides this Software “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.

8. FEES AND PAYMENT.

As consideration for the Software subscriptions purchased by You and provided to You by Otis via our eCommerce website, You agree to submit a valid credit card (Visa, MasterCard, American Express or Discover) for your 30 day free trial period. Your credit card will be charged for 1 month at the subscription level You chose if you do not cancel during Your trial period. All fees are due immediately after Your trial period and are non-refundable unless otherwise expressly noted, even if Your subscription is suspended, terminated, or transferred prior to the end of the subscription term. Enterprise level customers (Software and/or Services in which fees exceed $15,000.00 annually), may request an invoice for subscriptions. Invoices for subscriptions are payable in advance of subscription term. Enterprise level customers may also request an invoice for Services. Invoices for Services are due Net 30 days after receipt of invoice. Otis expressly reserves the right to modify pricing and/or terms of payment through email notification and/or notice on its Website. Either method is expressly agreed to by You.

If You signed up for a monthly subscription plan, Your monthly billing date will be determined based on the day of the month You purchased the Software subscription. If for any reason Otis is unable to collect the full amount owed Otis for the Software and/or Services provided, or if Otis is charged a penalty for any fee it previously charged to Your payment method, You agree that Otis may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason Otis is unable to charge Your credit card with the full amount of the Services provided, or if Otis is charged back for any fee it previously charged to the credit card You provided, You agree that Otis may pursue all available remedies in order to obtain payment. You agree that among the remedies Otis may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any subscriptions.

Otis reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, and disputes that require legal services. These charges will be billed to the payment method we have on file for You. You may change Your payment method at any time by logging into Your Account Manager, or by contacting Otis Technologies, LLC.

 

You agree that You are solely liable for arranging that Your Services and/or Software subscriptions are renewed, and that Otis shall not be liable to You or any third party if it is unable to charge Your payment method in order to renew Your Software subscriptions and/or Services. All pricing is listed in US Dollars, and all purchases are processed in US dollars.

9. REPRESENTATIONS AND WARRANTIES.

You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You take is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.

Otis expressly reserves the right to deny or cancel any Services or Software subscriptions that it deems necessary, in its discretion, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Otis, as well as its affiliates, subsidiaries, officers, directors and employees. Otis also reserves the right to freeze any and all Services and Software subscriptions during resolution of a dispute.

10. LIMITATION OF LIABILITY.

IN NO EVENT SHALL Otis BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF Otis HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, Otis’s liability is limited to the full extent permitted by law. You agree that in no event shall Otis’s maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from Otis.

11. DISCLAIMER OF WARRANTIES.

Otis expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Software and Services are provided on an "As Is" and "As Available" basis. Otis makes no warranty that its Software and/or Services will meet your requirements, or that services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. Otis does not warrant, nor make any representations regarding the use, or results of, any of the Software and/or Services it provides, in terms of their correctness, accuracy, reliability, or otherwise.

Some jurisdictions do not allow the disclaimer of implied warranties, in which event that foregoing disclaimer may not apply to You.

12. INDEMNIFICATION.

You agree to defend, indemnify and hold harmless Otis and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, Software or Services with Otis whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from Otis or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold Otis harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should Otis be notified of a pending law suit, or receive notice of the filing of a law suit, Otis may seek a written confirmation from You concerning Your obligation to indemnify Otis. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Otis shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Otis of any such claim promptly in writing and to allow Otis to control the proceedings. You agree to cooperate fully with Otis during such proceedings. You agree You will not be entitled to a refund of any fees paid to Otis if, for any reason, Otis takes corrective action with respect to Your improper or illegal use of its services.

13. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.

This agreement shall be deemed entered into in the State of Tennessee. You agree that the laws and judicial decisions of Davidson County, Tennessee, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Davidson County, Tennessee. For the adjudication of disputes concerning the use of any Otis Software and/or Services, You agree to submit to jurisdiction and venue in the U.S. District Court for the District of Middle Tennessee located at 801 Broadway, Nashville, TN 37203.

You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.

14. NOTICES.

You agree that all notices (except for notices concerning breach of this Agreement) from Otis to You may be posted on our Website. Notices concerning breach will be sent either to the email or postal address You have on file with Otis. In either case, delivery shall be deemed to have been made five (5) days after the date sent.

Notices from You to Otis shall be made either by email, sent to the address provided on the Otis Web site, or first class mail to Otis’s address at:

Otis Technologies, LLC., Attn: Legal Counsel, 1616 Westgate Circle, Brentwood TN 37027.

15. HEADINGS.

The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.

16. ENTIRE AGREEMENT.

You agree that this Agreement including the policies and agreements it refers to (i.e. our Privacy Policy, etc.) constitute the complete and only Agreement between You and Otis regarding the Software and/or Services contemplated herein.

17. SEVERABILITY.

You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.

18. WAIVER.

The failure of Otis to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of Otis thereafter to enforce such provisions.

19. FORCE MAJEURE.

Otis will make every effort to keep its Website, Software and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Otis liable for any of the consequences of such interruptions.

20. SURVIVAL.

Sections 1,6,9,11,12,13,14,15,16,17,18,19,20 and 21 shall survive any termination or cancellation of this Agreement.

21. NO THIRD PARTY BENEFICIARIES.

Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.