TERMS OF SERVICE

Last Update on January 15, 2024.

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

By submitting an order for/ requesting products or services from OpenMedium or through a reseller (an “Order”), by agreeing to a SOW (as is defined below), or by using the openmedium.biz website(s) (the “Website”), you affirm that you are of legal age to enter into this agreement (this “Agreement”) with OpenMedium, Inc. (“OpenMedium,” “we,” “us,” or “our”). You (each customer, reseller and end-user referred to herein as “you” or “Customer”) accept and are bound by this Agreement. You affirm that if you place an Order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these terms and conditions.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT (i) AT LEAST 18 YEARS OF AGE OR (ii) OF LEGAL AGE TO FORM A BINDING CONTRACT WITH OPENMEDIUM, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS OR SERVICES BY APPLICABLE LAW.

This Agreement governs access and use of this Website, our Website Hosting Services, and our Consulting Services (the “Services”). We may update this Agreement from time to time in our sole discretion; the current version may be found at https://www.openmedium.biz/legal/.

ACCESS TO SERVICES

Website Hosting Services. You may purchase website hosting and related services (“Website Hosting Services”) by placing an Order with us. Our Website Hosting Services options and applicable hosting package fees are described at https://www.openmedium.biz/pricing/. Subject to the terms and conditions of the Agreement, we will use commercially reasonable efforts to provide Customer with the Website Hosting Services in accordance with the Service Legal Agreement (the “SLA”) during the Subscription Term. “Subscription Term” means the time period set forth in the SOW or, if no time period is set forth in the SOW, the time period which begins on date of the Order and continues until the Agreement terminated as set forth herein. Our SLA sets out our service level commitment for Website Hosting Services. The SLA specifies Customer’s sole remedies for downtime, unavailability, or other SLA failures.

a. Customer shall use the Website Hosting Services solely for its intended purpose in accordance with this Agreement and our Acceptable Use Policy found at https://www.openmedium.biz/legal/acceptable-use-policy/. YOU AGREE NOT TO USE THE WEBSITE HOSTING SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE WEBSITE HOSTING SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

b. Customer shall provide us with all information, assistance and materials as reasonably required for us to activate and operate the Website Hosting Services.

c. Customer acknowledges that we may provide the Website Hosting Services using our own infrastructure or we may engage third parties to provide or enable elements thereof. We will not arbitrarily make changes to the Website Hosting Services. However, from time-to-time, we may make changes to address technical issues and/or ensure the stability of our network and during this time the Website Hosting Services may be unavailable. We will use commercially reasonable efforts to provide Customer with notice of anticipated unavailability. We may need to make emergency changes without notice.

d. From time-to-time either we, or the providers of the Third Party Services, may cease supporting aspects of the Website Hosting Services, or provide replacement components (any such event, an “End of Life”). Should components of the Website Hosting Services come to an End of Life, we will use commercially reasonable efforts to replace them with comparable components, but may not be able to do so. No End of Life shall constitute a breach of this Agreement.

e. Certain aspects of the Website Hosting Services may be in beta form as designated by us (“Beta Services”). In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any SLA, indemnity, representation or warranty that we provide herein does not apply to the Beta Services. We reserve the right to terminate the Beta Services at any time, even if Customer has relied on them as a material inducement to enter into this Agreement. We make no guarantee that Beta Services will be put into production.

f. If Customer orders a dedicated IP address from us, the Customer has the right to use this IP address only during the Subscription Term and subject to this Agreement. Upon termination or expiration of this Agreement for any reason Customer will have no further right to use this IP address. Customer acknowledges that the dedicated IP address may be revoked at any time according to our Acceptable Use Policy which the customer agrees to fully comply with. Additionally, Customer acknowledges that IP addresses are a limited global internet resource and may be required to relinquish the assigned address, in such a case the customer will be credited for the dedicated IP address charges for the remainder of their service Subscription Term.

g. Elements of our Website Hosting Services are duplicated for disaster recovery purposes ( “Backups”). Backups are designed to restore the Website Hosting Services in an emergency as a “Best Effort” service. Data restored from a Backup may not be formatted in the original manner and may not capture all data. We have no obligation to Customer, or any third party, to restore all of Customer Data, or liability for failure to do so.

h. As between the parties, you own and retain all rights to your Customer Data in your Website Hosting Services account. This Agreement does not grant us any ownership rights to Customer Data relating to Website Hosting Services. You grant permission to us and our licensors to use the Customer Data only as necessary to provide Website Hosting Services to you and as permitted by this Agreement. If you are using the Website Hosting Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. “Customer Data” means any information regarding access to or use of the Services and products which include third party services any of their features or functionality, including information that is collected automatically through cookies or other tracking technology, whether or not such information does or is capable of identifying a single user, account, device, or organization and any information that identifies, can identify or confirm the identity of, or is otherwise associated with, a specific individual or device, including information: (a) from which a specific individual or device can be located or contacted; or (b) that identifies a specific individual’s or device’s behavior on the internet, including use of the Customer’s website or other materials.

Consulting Services. You may purchase professional consulting, marketing management, software design or development, website service desk support, or other services (“Consulting Services”) by placing an Order with us. Your Order may contain additional terms detailing the deliverables to be completed by us and fees to be paid by you, as described in a statement of work (“SOW”). Our Service Desk Support options and applicable package fees are described at https://www.openmedium.biz/pricing/. Subject to the terms and conditions of the Agreement, we will use commercially reasonable efforts to provide Customer with Service Desk Support services, subject to the Exclusions specified at
https://www.openmedium.biz/legal/support-response/.

a. OpenMedium and Customer agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services and deliverables, documented in an SOW, in a timely and professional manner.

b. OpenMedium and Customer will each designate a representative to interface and facilitate the successful completion of the Consulting Services.

c. Customer agrees to provide, at no cost to OpenMedium, timely and adequate assistance and other resources reasonably requested by OpenMedium to enable the performance of the Consulting Services (collectively, “Assistance”). Neither OpenMedium, nor its Subcontractor(s) will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Customer, including but not limited to, Customer’s failure to provide Assistance as required hereunder.

d. In performing the Consulting Services, OpenMedium will provide such resources, and utilize third party subcontractor(s) (“Subcontractor(s)”) as it deems necessary to perform the Consulting Services or any portion thereof. OpenMedium will perform the Consulting Services, directly or through a Subcontractor(s) of its choice. Customer may object to OpenMedium’s election of Subcontractor(s) by specifying its objection to OpenMedium, in which case OpenMedium will cooperate in good faith to appoint another Subcontractor(s) to perform such Services. OpenMedium may replace Subcontractor(s) in its normal course of business, provided that OpenMedium will be responsible for the performance of Services by all Subcontractor(s).

e. OpenMedium will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Subcontractor(s) performing Consulting Services. OpenMedium will maintain such number of qualified Subcontractor(s) and appropriate facilities and other resources sufficient to perform OpenMedium obligations under the Agreement.

f. Customer agrees to reimburse OpenMedium for all actual reasonable and necessary expenditures, which are directly related to the Consulting Services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, rideshares, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by OpenMedium will be reimbursed by the Customer within fifteen (15) days of OpenMedium’s proper written request for reimbursement.

g. Any and all deliverables designated in an SOW to be owned by Customer that are delivered to Customer as part of the Consulting Services (“Custom Deliverables”), including Intellectual Property Rights therein, are hereby assigned to Customer, with the exception of any Third-Party Materials which shall remain with the respective rights holders thereof. Customer may use this material in any way deemed appropriate. OpenMedium shall not publish or otherwise distribute any written materials (including any public website content) referencing Customer without the express prior written consent of the Customer. As between Customer and OpenMedium, subject to the license granted under this Section, OpenMedium is, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all documents, data, know-how, methodologies, software, and other materials developed or acquired by OpenMedium except for Custom Deliverables (“OpenMedium Materials”), including all Intellectual Property Rights therein. To the extent that any OpenMedium Materials are incorporated in or combined with any deliverable or otherwise necessary for the use or exploitation thereof, OpenMedium hereby irrevocably grants to Customer a royalty-free, fully paid-up, perpetual, transferable, sublicensable, worldwide, non-exclusive license to use, perform, display, reproduce, distribute, modify, make derivative works of, make, have made, sell, offer to sell, import, and otherwise exploit such OpenMedium Materials as part of or in connection with such deliverables, and to practice any method related thereto. All other rights in and to the OpenMedium Materials are expressly reserved by OpenMedium. “Intellectual Property Rights” means any and all rights arising in the US or any other jurisdiction throughout the world in and to (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and works of authorship (whether copyrightable or not), including computer programs, mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential or proprietary information, and (e) all other intellectual property, in each case whether registered or unregistered, and including all registrations and applications for such rights and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world.

h. Customer shall not publish or otherwise distribute any written materials (including any public website content) referencing OpenMedium without the express prior written consent of OpenMedium.

i. In performing the Consulting Services, OpenMedium may develop software for Customer and such software may include or operate in conjunction with Third-Party Materials. OpenMedium will identify to Customer all Third-Party Materials OpenMedium includes in or that are required for use with any deliverable on or prior to delivery of the relevant deliverable and provide to Customer: (a) a copy of all documentation and third-party license agreements relating to such Third-Party Materials as are available to OpenMedium; or (b) website or other information specifying where Customer can access such documentation and third-party license agreements. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Customer shall comply with all such third-party license agreements and any breach by Customer thereof will be deemed a breach of this Agreement. “Third-Party Materials” means materials and information, in any form or medium, including any software (including open source software), documents, data, content, specifications, products, equipment, or components of or relating to the deliverables that are not proprietary to OpenMedium.

j. Either party may, at any time during the Subscription Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such changes. No changes will be effective unless and until memorialized in a written change order signed by both parties.

k. Customer shall, in accordance with any project due date set forth in an SOW:

  • (i) perform all obligations as identified in any applicable SOW;
  • (ii) provide the all resources as may be reasonably necessary to support OpenMedium’s performance of the Services;
  • (iii) provide OpenMedium personnel with such access to Customer’s premises and Operating Environment as is necessary for OpenMedium to perform its obligations on a timely basis as set
  • forth in the SOW and project plan;
  • (iv) ensure the operating environment is set up and in working order to allow OpenMedium to perform the Services and deliver deliverable on or prior to the applicable due date set forth in the delivery schedule;
  • (v) participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with, the SOW and project plan and such other meetings as may be scheduled on at least 10 days’ prior notice;
  • (vi) provide all consents, approvals, exception notices, and other communications specified in the SOW and project plan or as otherwise may be required under this Agreement; and
  • (vii) provide all cooperation and assistance OpenMedium reasonably requests to enable OpenMedium to exercise its rights or perform its obligations under this Agreement.

l. OpenMedium is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, OpenMedium may, by written notice to Customer, extend all or any subsequent due dates set forth in a Scope of Work as OpenMedium deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies OpenMedium may have for any such failure or delay by Customer.

PAYMENT TERMS

Payment Information. OpenMedium will keep your contact information, billing information and credit card information (where applicable) up to date. Changes to your payment information may be made in your customer billing portal or by calling customer support. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. Unless otherwise stated in a SOW or invoice, all fees are due and payable in advance throughout the Subscription Term or as specified in the Order. If you are a reseller that purchases on behalf of an end-user client, you agree to be responsible for the Order and to guarantee payment of all fees.

Payment Against Invoice. If you are paying by invoice, we will invoice you no more than fifteen (15) days before the beginning of the Subscription Term and each subsequent billing period, and other times based on the SOW or as specified in your Order. All amounts invoiced are due and payable within fifteen (15) days from the date of the invoice, unless otherwise specified in the Order or SOW. Any amounts paid by you in advance shall be considered non-refundable retainer payments.

Payment By Credit Card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, SOW and as specified in the Order. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

Early Termination. Unless otherwise indicated in an SOW, the Subscription Term will continue month-to-month until either party provides at least 30 days’ written notice of non-renewal or termination to the other party. The termination date shall be the thirtieth (30th) day following the day notice to the other party is deemed to have been given. If any part of your payments are due or past due, they are still deemed due and payable. Customer acknowledges that any fees paid to OpenMedium were paid on a flat-fee basis and are non-refundable. If Customer terminates this Agreement or an SOW early, OpenMedium will not be obligated to refund any fees already paid. Notwithstanding the foregoing, if OpenMedium terminates the Services early and for any reason other than termination for cause pursuant to the below paragraph, OpenMedium will refund to fees paid by Customer in advance for Services that OpenMedium has not performed as of the effective date of termination, determined on a pro rata basis.

Termination for Cause. OpenMedium may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 15 days after OpenMedium’s delivery of written notice thereof; or (ii) breaches any of its obligations under Confidentiality.

Refunds. OpenMedium does not provide refunds if Customer decides to stop using the Services during the current Subscription Term or SOW.

Suspension of Services. In addition to all other remedies available to OpenMedium, if Customer fails to pay any fees owned to OpenMedium, OpenMedium may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension. Notwithstanding anything to the contrary in this Agreement, OpenMedium may temporarily suspend Customer’s and any user’s access to any portion or all of the Services if: (i) OpenMedium reasonably determines that (A) there is a threat or attack on any of the Services; (B) Customer’s or any user’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of OpenMedium; (C) Customer, or any user, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) OpenMedium’s provision of the Services to Customer or any user is prohibited by applicable law; (ii) any vendor of OpenMedium has suspended or terminated OpenMedium’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) as otherwise set forth in this Agreement (a “Service Suspension”). OpenMedium shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding the resumption of access to the Services following any Service Suspension. OpenMedium shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. OpenMedium will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any user may incur as a result of a Service Suspension.

CONFIDENTIALITY

For the purposes of this Agreement, “Confidential Information” means all information disclosed by OpenMedium to Customer or by Customer to OpenMedium which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these terms; (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

Subject to the express permissions of this Agreement, OpenMedium and Customer will protect each other’s Confidential Information from unauthorized use, access and disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each party may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of its Subcontractors who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.

Notwithstanding the foregoing, this Agreement shall not prevent the party receiving Confidential Information from disclosing such Confidential Information to the extent required by a judicial order or other legal obligation, provided that, in such event, the receiving party shall promptly notify the disclosing party of such requirement to allow intervention (and shall cooperate with the disclosing party at the disclosing party’s expense) to contest or minimize the scope of the disclosure (including application for a protective order).

The Parties acknowledge that any unpermitted disclosure of a party’s Confidential Information will cause the disclosing party irreparable harm for which its remedies at law would be inadequate. Accordingly, each party (as the receiving party) acknowledges and agrees that the party disclosing Confidential Information will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the receiving party’s obligations hereunder with respect to the Confidential Information of the disclosing party, and such further relief as any court of competent jurisdiction may deem just and proper.​Upon termination of this Agreement or a request by a disclosing party, each party, as a receiving party of Confidential Information, will return to the disclosing party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof, in the possession of the receiving party, except for information necessary to implement the objectives of this Agreement after its termination.

REPRESENTATIONS AND WARRANTIES

Each party represents and warrants to the other party that:

a. it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

b. it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under this Agreement;

c. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

d. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

USE RESTRICTIONS

Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any users to: (i) copy, modify, or create derivative works of the Services or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or documentation; or (v) use the Services or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

OpenMedium reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the OpenMedium’s systems, Intellectual Property Rights, or the Services.

THIRD-PARTY PRODUCTS

OpenMedium may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Customer acknowledges and agrees that OpenMedium is not responsible for the performance of Third-Party Products. “Third-Party Products” means any third-party products described in the Order, SOW or that
are provided with or incorporated into the Services.

INDEMNIFICATION

Customer agrees to indemnify, hold harmless, and at OpenMedium’s option defend OpenMedium and its officers, directors, employees, advisors, subsidiaries, affiliates and subcontractors from any and all claims and all related losses, liabilities, damages, costs and expenses (including, without limitation, reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) arising from or related to: (a) any allegation that the Services or Customer’s use thereof: (i) violates or in any way infringes or misappropriates any third party’s Intellectual Property Rights, (ii) violate any applicable law, rule or regulation, or (iii) constitute, or contain material that constitutes, libel, defamation or a violation of the right of privacy or publicity; and (b) any claim that is a result of, in whole or in part, on any act or omission of Customer (or any of Customer’s personnel), including a breach of this Agreement or Customer’s gross negligence and willful misconduct. These indemnification provisions shall be conditioned upon Customer not consenting to any judgment or decree or entering into any settlement of such action without OpenMedium’s prior written approval.

LIMITATION OF LIABILITY

IN NO EVENT SHALL OPENMEDIUM OR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, AFFILIATES OR SUBCONTRACTORS, BE LIABLE FOR ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OPENMEDIUM AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND ANY OTHER CLAIMS OR CAUSES OF ACTION, EXCEED THE TOTAL OF THE AMOUNTS PAID TO OPENMEDIUM PURSUANT TO THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OPENMEDIUM UNDER OR IN CONNECTION WITH SUCH THIRD-PARTY PRODUCTS OR THIS AGREEMENT OR ANY CLAIMS RELATED TO THIRD-PARTY PRODUCTS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND ANY OTHER CLAIMS OR CAUSES OF ACTION, EXCEED $100.

WITHOUT LIMITING THE FOREGOING, CUSTOMER’S REMEDY AND OPENMEDIUM’S TOTAL AGGREGATE LIABILITY FOR BREACH OF ANY SLA IS EXCLUSIVELY SET FORTH IN SUCH SLA. IF THERE IS NO REMEDY SET FORTH IN THE SLA WITH RESPECT TO A PARTICULAR SERVICE LEVEL, THEN SUCH SERVICE LEVEL IS A GOAL AND OPENMEDIUM SHALL HAVE NO LIABILITY OF ANY KIND FOR FAILURE TO MEET SUCH SERVICE LEVEL.

THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

DISCLAIMER

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

WITHOUT LIMITING THE FOREGOING, OPENMEDIUM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DELIVERABLES, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE APPLICABLE SCOPE OF WORK, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS
ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

OPENMEDIUM STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, AND THE SLA DOES NOT APPLY TO THIRD-PARTY PRODUCTS OR THEIR AVAILABILITY.

EXCLUSIONS

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

MISCELLANEOUS

a. This Agreement shall be governed and construed in accordance with the laws of Colorado, United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. If any provision of this Agreement held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect. This Agreement constitutes the terms and conditions between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.

b. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

c. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party to such address that such party may designate from time to time. Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) and on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

e. This Agreement, together with any SOW, Order, OpenMedium’s policies located on its website, and any other document incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, attachments, and appendices and any SOW or Order, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, attachments, and appendices; (b) second, the exhibits, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

f. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without OpenMedium’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which OpenMedium’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

g. In no event will OpenMedium be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond OpenMedium’s reasonable control, including (i) acts of God; (ii) flood, fire, earthquake, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency.

h. Other than as set for under Indemnification, this Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

i. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

j. During the term of this Agreement and for a period of two years thereafter, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability and cyber liability insurance. Upon OpenMedium’s request, Customer shall provide OpenMedium with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name OpenMedium as an additional insured. Customer shall provide OpenMedium with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against OpenMedium’s insurers and OpenMedium.

k. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.