Operto Guest Technologies Terms and Conditions

Operto Terms of Service

Last updated: Wednesday, March 31, 2021

These Terms of Service (this “Agreement”) set forth the terms and conditions that apply to your access and use of the property management dashboard available at https://www.operto.com (the “Site”), owned and operated by Operto Guest Technologies Inc. (“Operto”, “we”, “our” or “us”), and the related services and, if applicable, hardware provided by Operto in connection therewith, as further described below (collectively, the “Services”), based on the subscription package you have selected (the “Subscription Package”).  More information about the subscription packages, including current pricing, is available at https://www.operto.com/pricing/.

BY ACCESSING OR USING THE SITE OR SERVICES OR CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, YOU ARE INDICATING YOUR ACCEPTANCE TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SITE OR THE SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SITE OR THE SERVICES.

By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as Operto’s Privacy Policy located at https://www.operto.com/privacy/ (the “Privacy Policy”), as it may be amended from time to time in the future.

Operto may update this Agreement or the Privacy Policy at any time, without notification to you, and you should review this Agreement and the Privacy Policy from time to time by accessing the Site.  Your continued use of the Site and/or the Services will be deemed irrevocable acceptance of any such revisions.  Before you continue, you should print or save a local copy of this Agreement and the Privacy Policy for your records.

1.              Ability to Enter into this Agreement

In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.  It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you.  If you accept this Agreement, you represent that you have the capacity to be bound by it.

2.              Intellectual Property Rights

2.1           All material available on the Site and all material and services provided by or through Operto, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel”, layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.

2.2           Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Operto grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you.  You are not permitted to download, copy or otherwise store any Materials.

2.3           This section does not apply to Content (as defined below); however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Operto related to the Services, the Site or Operto or its business (“Feedback”) are and will be Operto’s exclusive property without any compensation or other consideration payable to you by Operto, and you do so of your own free will and volition.  Operto may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Operto may decide into the Site, the Services, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing.  You hereby assign all rights on a worldwide basis in perpetuity to Operto in any Feedback and, as applicable, waive any moral rights.

2.4           For the purposes of this Agreement and the Privacy Policy, “personal information” is any information about an identifiable individual, as defined in our Privacy Policy.

2.5           Operto retains the right to use or share any Aggregated Data generated by anyone using the Site or the Services, including our users, for the purpose of enhancing and providing the Services.  “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information.  Where you choose to utilize or connect certain services from third parties with the Services, you agree that Operto may share your lead data with such designated third parties. You are still responsible for any and all personal information that is part of any Content (as defined below).

3.              Your Profile Information and Account

3.1           Upon your purchase of the Subscription Package, we will create a customer account for you (your “Account”) and provide access to the Services, based on the service offering specified in your Subscription Package. Operto will provide you with one user identification reference that you will use to create a username and password (together, the “User ID”) to the extent, and only to the extent, necessary to access and use the Site and Services in accordance with this Agreement.  You agree and understand that you are responsible for maintaining the confidentiality of your User ID.  That User ID, together with any or other user information you provide, will form your “Profile Information” and allow you to access your Account.  You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information.  You represent and warrant to Operto that you have not misrepresented any Profile Information.  You are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Services.

3.2           Your right to access and use the Site and Services is personal to you and is not transferable by you to any other person or entity.  You agree not to disclose your User ID to any third party.  You are solely responsible for all activities that occur under your Account or under your Profile Information.  If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Operto immediately.  It is your responsibility to update or change your Account or Profile Information, as appropriate.

3.3           Operto deems the person whose name appears on the credit or charge card that pays the charges for the Services to be the owner and controller of the User ID, Profile Information and Account for all purposes under this Agreement.  If a corporate or other organization’s name appears on the credit or charge card, that corporation or organization is deemed to be the owner.  If any dispute arises as to who owns or controls a User ID, Profile Information or Account, the credit or charge card will continue to be charged and you will be responsible to pay for the Services until Operto receives written confirmation from the Account email address confirming a change in ownership and control of the Account.

3.4           In the case of any newsletter or other marketing initiatives, you can withdraw your consent to receiving those communications and unsubscribe to any Operto subscriptions at any time by clicking “Unsubscribe” at the bottom of such communication or by contacting info@operto.com.  Doing so may have a material impact on our ability to provide any Services to you, and we are not responsible if you do so.

4.              Fees and Renewals

4.1           Current pricing for our subscription packages for the Services is available at https://www.operto.com/pricing/.  Unless otherwise agreed to by Operto, fees for the Subscription Package selected by you will be billed in advance for each month, commencing on the Effective Date (as defined below) and are non-refundable.  There will be no refunds or credits for partial months of service or for periods in which you do not use the Services.

4.2           We reserve the right to modify our billing rates for your Subscription Package at any time upon 30 days’ written notice by posting such fee changes to the Site or through email notification to you.  You will be liable to pay such modified billing rates for your Subscription Package.

5.              Term and Renewal

5.1           Subject to your payment of the applicable fees for your Subscription Package, we will provide the Services to you commencing on the date you submit your order for your Subscription Package (the “Effective Date”) until this Agreement is terminated in accordance with Section 18 or Section 19 below, as applicable.

5.2           You agree that Operto, or our third party service providers, may store your credit or charge card information.  You expressly agree that we are authorized to charge you (i) the fee for the Services provided in the applicable Subscription Package for which you have subscribed, billed in advance on a monthly basis, (ii) any other fees for Services you may purchase, including without limitation any fees associated with any Hardware (as defined in Section 19.3 below) that is provided to you by Operto and is not returned as required pursuant to the terms of this this Agreement, if applicable, (iii) any charges for use of the Services in excess of the usage or other limits placed on your use of the Services (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance) and (iv) any applicable taxes in connection with your use of the Services to the credit or charge card you provide and to reimburse us for all collection costs and interest for any overdue amounts.  If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your Account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.

6.              Taxes

You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to any purchase or sale of services or goods under this Agreement.  When purchasing services or goods under this Agreement, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority.  Any tools provided as Materials or in connection with the Services indicating estimated taxes due are for illustration purposes only.

7.              Submission of Content

7.1           The Site and the Services available thereon enable you to provide or upload content, including but not limited to messages, materials, data, text, music, sound, photos, videos, graphics, applications, code and other information or content (collectively, “Content”), to Operto for the purpose of providing the Services.  You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.

7.2           Operto will use Content you upload solely in connection with providing the Services to you, and for no other reason.  You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Services, you grant to Operto a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Services to you.  This license includes the right to host, index, cache or otherwise format your Content in order to provide the Services.

7.3           You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Operto or Operto’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.

7.4           You agree that Operto is not responsible for any violations of any third party intellectual property rights in any Content that you submit to Operto.  You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.

8.              Monitoring

Operto may, but has no obligation to, monitor Content on the Site.  You consent to such monitoring.  We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Operto or its customers, or operate the Site or Services properly, or improve the Site or Services.  Operto, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement, including, but not limited to the Privacy Policy.

9.              Internet Security Disclaimer; Limitation, Suspension or Termination of Access.

9.1           Internet Security Disclaimer.  You acknowledge and agree that Operto exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Operto’s control.  You acknowledge that the Internet is inherently risky despite reasonable measures being taken, and you assume responsibility for your use of the Services over the Internet.

9.2           Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Operto under this Agreement, Operto may suspend, terminate or limit (in Operto’s sole discretion) your access to or use of the Services, or any part of them, without notice in order to: (a) prevent damage to, or degradation of the integrity of, Operto’s systems or your systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Operto from harm to its reputation or business.  Operto will use commercially reasonable efforts to notify you of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Operto will restore your access to the Services when Operto determines the event has been resolved.  Nothing in this Agreement will limit Operto’s right to take any action or invoke remedies, or will act as a waiver of Operto’s rights in any way with respect to any of the foregoing activities. Operto will not be responsible for any loss or damages of any kind incurred by you as a result of any limitation, termination or suspension of the Services under this Section 9.2.

10.           Acceptable Use and Conduct:

You agree that you will not publish or make available any Content that, or use the Site or Services in a manner that:

(a)            infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;

(a)            contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(b)            is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;

(c)            is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;

(d)            is harmful to minors in any way;

(e)            is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Operto;

(f)             impersonates an Operto employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Site or Services or a portion thereof without proper authorization;

(g)            interferes or attempts to interfere with the proper working of the Site or Services or prevents others from using the Site or Services, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other persons’ ability to use the Site or Services;

(h)            uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or Services or the content contained therein;

(i)             facilitates the unlawful distribution of copyrighted Content;

(j)             except as expressly permitted by Operto, licenses, sublicenses, rents or leases the Services to third parties, or uses the Services for third party training, commercial time-sharing or service bureau use;

(k)            includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Services to users;

(l)             constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;

(m)          stalks or otherwise harasses anyone on the Site or using the Services or with information obtained from the Site or Services;

(n)            collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;

(o)            requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site or Services for the purposes of automating logins to the Site;

(p)            attempts to gain unauthorized access to the computer systems of Operto or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Services;

(q)            posts adult or pornographic Content;

(r)             decompiles or reverse engineers or attempts to access the source code of the software underlying the Site, the Services or any other Operto technology;

(s)            copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site or Services;

(t)             accesses the Site or Services for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Services;

(u)            accesses the Site or Services for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or

(v)            accesses the Site to upload any Content or computer code for the purposes of: (i) causing a breach or override of security to the Site or Services; (ii) interfering with the proper working, functionality or performance of the Site or Services; or (iii) preventing others from accessing or using the Site or Services.

11.           Disclaimer of Warranties

11.1         YOUR USE OF THE SITE OR SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE OR SERVICES, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK.  THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, OPERTO EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE OR SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT.

11.2         OPERTO DISCLAIMS ANY WARRANTY THAT THE SITE, THE SERVICES OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU AGREE THAT FROM TIME TO TIME OPERTO MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU.  YOUR ACCESS AND USE OF THE SITE AND THE SERVICES MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICES OR OTHER ACTIONS THAT OPERTO, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE.  OPERTO MAKES NO GUARANTEE REGARDING: (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE SITE OR SERVICES; OR (B) THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE OR CONTENT WITH THE SITE OR SERVICES.

11.3         OPERTO IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, OR HOSTING SERVICES UTILIZED BY OPERTO, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY OPERTO.

11.4         YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR CONTENT IS COMPATIBLE WITH THE SITE AND SERVICES.  OPERTO DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE SITE AND SERVICES AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.

11.5         ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

11.6         NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPERTO OR THROUGH OR FROM THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

11.7         THE SITE AND SERVICES ARE OFFERED AND CONTROLLED BY OPERTO FROM ITS FACILITIES IN CANADA.  OPERTO MAKES NO REPRESENTATIONS THAT THE SITE OR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE OR SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

12.           Third Party Sites and Content

The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site.  These other websites are not under Operto’s control, and you acknowledge that Operto is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources.  The inclusion of any such link does not imply endorsement by Operto or any association with its operators.  You further acknowledge and agree that Operto will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource.  Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.

13.           Third Party and Partner Software

Operto makes use of third party software services to provide additional services to its clients outside of its standard offerings on a client by client basis. In the event you use these specific modules, you acknowledge their additional terms of service included and made reference in Appendix A, and that Operto is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such services.  You further acknowledge and agree that Operto will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services.  Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.

 

14.           Exclusive Remedy and Limitation of Liability

14.1         YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, WILL OPERTO OR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF OPERTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT.  OPERTO’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS YOU PAID TO OPERTO IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE.  TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OPERTO’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION WILL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, OPERTO WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO YOUR PROVISION OF AN INDIVIDUAL’S PERSONAL INFORMATION TO OPERTO OR THROUGH THE SERVICES. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.

14.2         THE FOREGOING LIMITATIONS WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN OPERTO AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.  YOU ALSO AGREE THAT OPERTO WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.

14.3         Operto will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any modification, suspension or discontinuance of the Site and/or the Services.

15.           Waiver of Jury Trial and Class Action Rights

WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES AND/OR THIS AGREEMENT: (A) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (B) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

16.           Limitation of Time

You agree that you will not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.

17.           Indemnity

You agree to indemnify, defend and hold harmless Operto, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or the Services, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services and any Content, including without limitation your Profile Information and any third party Content forming part of the Site;  (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein.  Operto reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Operto and you agree to cooperate with Operto’s defense of these Claims. You agree not to settle any matter without the prior written consent of Operto.  Operto will use reasonable efforts to notify you of any such Claims upon becoming aware of it.

18.           Cancellation and Termination

18.1         If, within 60 days from the Effective Date (the “60 Day Guarantee Period”), you are not satisfied with our Services, you may cancel your Subscription Package in exchange for a refund in accordance with this Section 18.1 by providing us with written notice addressed to info@operto.com, unless you have chosen the Professional Plus Plan offered by Operto as your Subscription Package (the “Professional Plus Plan”), in which case Section 19.9 applies.  Upon receiving your written request for cancellation of your Subscription Package within the 60 Day Guarantee Period pursuant to this Section 18.1, Operto will refund you the fees paid by you for your Subscription Package up to the date on which you terminated such Subscription Package, and this Agreement will terminate.

18.2         You may cancel your Subscription Package and terminate this Agreement at any time after the 60 Day Guarantee Period, or upon Operto declining to accept the return of your Hardware pursuant to Section 19.9 below, by cancelling your Subscription Package through the web interface provided as part of the Services.  Cancellation must be issued via such web interface or via Operto’s support addresses.  This is the only way to cancel your Subscription Package and you will not be provided with a refund, in whole or in part, of any pre-paid amount.  Phone requests to cancel your Subscription Package will not be accepted.

18.3         If you cancel your Subscription Package and terminate this Agreement in accordance with Section 18.2, you will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the month in which you cancelled your Subscription Package.

18.4         Operto is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation of your Subscription Package, or may keep your Account and your Content for up to 90 days following the last day of the month of cancellation.  Upon request from you, we will make available for access to you any of your Content for 90 days from the effective date of termination of the Services.

18.5         Operto may terminate this Agreement and cancel your Subscription Package at any time in the event of a breach or default of any provision of this Agreement, including, but not limited to, your failure to pay the fees for the Services, that remains uncured thirty (30) days after delivery to you of written notice of the breach.  If we terminate this Agreement and cancel your Subscription Package in accordance with this Section 18.5, you will remain liable for all charges accrued on your Account up to the time of cancellation, including pre-paid fees for the month in which the termination occurs.

19.           Additional Terms Applicable to Professional Plus Subscription Package

19.1         If you have chosen the Professional Plus Plan for your Subscription Package, then the additional terms in this Section 19 apply to you and your use of the Services.

19.2         Professional Plus Payment Schedule – Unless otherwise agreed upon in writing between you and Operto, the monthly fees for the Professional Plus Plan, including the breakdown of the fees between the allocation for the amortization of the Hardware and the allocation for the other Services, are as set forth in the payment schedule attached as Schedule “A” to this Agreement (the “Professional Plus Payment Schedule”).

19.3         Hardware – As part of the Professional Plus Plan, unless a customized set of hardware is otherwise agreed upon between you and Operto, we will provide you with the following hardware for no additional cost: one lock, one hub, and one unit sensor (collectively, the “Hardware”).

19.4         Hardware Shipping – You will be responsible for paying all shipping costs, duties, taxes, and other applicable fees for the delivery of the Hardware.  Any shipping dates or timeframes provided to you by Operto are estimates only and subject to change.

19.5         Delivery of & Title to Hardware – Operto will arrange to deliver the Hardware to you at the address and according to the instructions provided by you.  Operto will deliver the Hardware within a reasonable time after the receipt of your subscription, subject to availability of the Hardware.  Operto will not be liable for any delays, loss or damage in transit.  Title to the Hardware, and risk of loss or damage to the Hardware, will pass to you upon Operto’s delivery of the Hardware to the address provided by you.  If for any reason you fail to accept delivery of the Hardware on the date of delivery, or if Operto is unable to deliver the Hardware at the address specified by you on such date because you have not provided appropriate instructions, documents, license or authorizations, (i) risk of loss to the Hardware will pass to you; (ii) the Hardware will be deemed to have been delivered, and (iii) Operto may, at its option, store the Hardware until you pick them up, whereupon you will be liable for all related costs and expenses (including, without limitation, storage and insurance).

19.6         Limited Hardware Warranty – Operto warrants to you that each piece of Hardware supplied to you by Operto under the Professional Plus Plan will function as intended with the Site and Services during the period in which you subscribe for the Professional Plus Plan (the “Warranty Period”) and Operto will, during the Warranty Period, repair or replace any Hardware found by it to be defective provided that the Hardware is installed and operated in accordance with Operto’s instructions, and further provided that the Hardware is used under normal conditions for which it was designed and that it receives due and proper care, protection and maintenance.  The limited warranty provided in this Section 19.6 shall not apply to the extent that the breach of the warranty arises as a result of: (a) a failure of any third-party provider of any content, service, network, software or hardware, including but not limited to, internet service providers and hosting services utilized by Operto; or (b) modification to the Hardware by anyone other than Operto.

19.7         Replacement of Hardware – If you believe any Hardware is in breach of Operto’s limited warranty, you must provide Operto with written notice addressed to info@operto.com (a “Warranty Notice).  Following receipt of a Warranty Notice by Operto, Operto will provide you with the mailing address you can use to ship the Hardware at issue to Operto for inspection.  Upon Operto receiving the returned Hardware at the mailing address specified, Operto will test and analyze the Hardware to verify whether the defect is covered by the limited warranty of Operto as set out in Section 19.6. After completion of testing, Operto will either send a repaired or replacement piece of Hardware to you should the returned Hardware be covered by warranty, or will decline the return.  Operto will be responsible for all shipping costs of replacement or repaired Hardware.  You will be responsible for all shipping costs for Hardware in the event the return is declined by Operto.

19.8         Pause Period– You may elect, upon written notice to Operto addressed to info@operto.com (the “Pause Notice”), to pause the Services under the Professional Plus Plan for a period of up to six consecutive months (the “Pause Period”) during each of: (a) the one (1) year period immediately following the Effective Date, and (b) the one (1) year period between the first anniversary of the Effective Date and the second anniversary of the Effective Date (each, a “Service Pause”).  The Pause Period will commence as of the date of your next monthly pre-payment date for the Services following receipt of the Pause Notice by Operto, based on your Professional Plus Payment Schedule.  By activating a Service Pause, you will forfeit the Services during the Pause Period except for the general maintenance of your Account and your access to the Hardware, and you will continue paying down the fees related to your use of the Hardware.  During the Pause Period, your monthly fees for the Services will be decreased by $20 per month due to the reduction in Services.  Immediately following the completion of the Pause Period, your monthly fees for the Services will automatically return to the “Total Monthly Payment” as set forth in the Professional Plus Payment Schedule. If you choose to activate a Service Pause, you may at any time end the Pause Period early by providing written notice to Operto addressed to info@operto.com indicating that you would like to resume full Services, in which case your monthly fees for the Services will automatically return to the “Total Monthly Payment” as set forth in the Professional Plus Payment Schedule as of the next monthly pre-payment date.

19.9         Cancellations Within 60 Days – If, within the 60 Day Guarantee Period, you are not satisfied with our Services, then you may cancel your Subscription Package for the Professional Plus Plan and return your Hardware to us, in exchange for a refund in accordance with this Section 19.9, by: (a) providing us with written notice addressed to info@operto.com indicating that you wish to cancel your Subscription Package and return your Hardware in exchange for a refund (the “Professional Plus Cancellation Notice”); and (b) shipping your Hardware, which must be in good condition and capable of being re-sold by Operto, with complete identification packing and marking, back to Operto at the mailing address provided to you by Operto following receipt of your Professional Plus Cancellation Notice (the “Address Instructions”), which Hardware must be received by Operto within 21 days following your receipt of the Address Instructions .  If your returned Hardware is received by Operto later than 21 days following your receipt of the Address Instructions, then Operto reserves the right to decline your return and ship your Hardware back to you.  Upon receiving your Professional Plus Cancellation Notice and your returned Hardware (the date on which both have been received by Operto being the “Return Date”), Operto will inspect the Hardware to determine whether it includes complete identification packing and marking, and is in good condition and capable of being re-sold, which will be determined in Operto’s sole discretion. After completion of the inspection, Operto will either accept your return and refund you the fees paid by you for the Professional Plus Plan up to the Return Date, or will decline your return and ship your Hardware back to you.  If Operto accepts your return, title to the Hardware will pass back to Operto, effective as of immediately following Operto’s inspection thereof. If Operto declines your return and ships your Hardware back to you pursuant to this Section 19.9, you may cancel your Subscription Package and terminate this Agreement without a refund in accordance with Section 18.2 above, and pay the Early Termination Fee for such cancellation in accordance with Section 19.10, or you may continue to use the Services in accordance with this Agreement. You are responsible for all shipping costs, duties, taxes, and other applicable fees associated with the return of the Hardware to Operto as well as for any shipment of the Hardware back to you upon a decline of your return by Operto pursuant to this Section  19.9.

19.10      Other Cancellations – You may cancel your Subscription Package for the Professional Plus Plan and terminate this Agreement at any time after the 60 Day Guarantee Period, or in the event your Hardware is returned pursuant to Section 19.9, in accordance with Section 18.2 above. If you cancel your Subscription Package for the Professional Plus Plan and terminate this Agreement in accordance with Section 18.2, then in addition to all charges accrued on your Account up to the time of cancellation, including full fees for the month in which you cancelled your Subscription Package, you will also be liable to Operto for the “Amount Owing on Cancellation” associated with the month during which you are cancelling the Services, as set forth in the Professional Plus Payment Schedule (the “Early Termination Fee”).  You acknowledge that the Early Termination Fee is a reasonable and good faith estimate of the loss caused to Operto in such circumstances, based on the out of pocket expense incurred by Operto in order to provide the Hardware as part of the Professional Plus Plan, and that the Early Termination Fee is not imposed as a penalty.

19.11      Effect of Cancellation – If you cancel your Subscription Package for the Professional Plus Plan and terminate this Agreement pursuant to Sections 19.9 or 19.10, the provisions of Sections 18.3 and 18.4 will also apply.

19.12      Operto’s Right to Terminate – Operto may terminate this Agreement and cancel your Subscription Package for the Professional Plus Plan at any time in the event of a breach or default of any provision of this Agreement, including, but not limited to, your failure to pay the fees for the Services, that remains uncured thirty (30) days after delivery to you of written notice of the breach.  If we terminate this Agreement and cancel your Subscription Package in accordance with this Section 19.12, you will remain liable for all charges accrued on your Account up to the time of cancellation, including pre-paid fees for the month in which the termination occurs, and you will also be liable to Operto for the “Amount Owing on Cancellation” associated with the month during which the Services are terminated by Operto pursuant to this Section 19.12, as set forth in the Professional Plus Payment Schedule (the “Termination for Breach Fee”).  You acknowledge that the Termination for Breach Fee is a reasonable and good faith estimate of the loss caused to Operto in such circumstances, based on the out of pocket expense incurred by Operto in order to provide the Hardware as part of the Professional Plus Plan, and that the Termination for Breach Fee is not imposed as a penalty.

20.           Miscellaneous

20.1         This Agreement has been made in and shall be construed and enforced in accordance with the laws of the jurisdiction of the Province of British Columbia and the federal laws of Canada, without regard to conflict of laws principles, and you irrevocably consent to submit to the exclusive jurisdiction of the courts of the Province of British Columbia for any claim, proceeding or action under this Agreement against Operto.  Notwithstanding the foregoing, Operto may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Operto through injunctive relief and other equitable remedies without proof of monetary damages.

20.2         The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

20.3         If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.

20.4         You agree that if Operto does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Operto has the benefit of under any applicable law), this will not be taken to be a formal waiver of Operto’s rights and that those rights or remedies will still be available to Operto.

20.5         The following sections will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect:  Sections 2, 4, 6, 7, 9 and 11 through 20.

20.6         This Agreement is the entire agreement between us related to the subject matter in this Agreement.  This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.

21.           Contacting Operto

You may contact Operto by email at info@operto.com.

 

APPENDIX “A”

AUTOHOST SOFTWARE AS A SERVICE AGREEMENT