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OTUVY QM SUBSCRIPTION AGREEMENT

 

            This OTUVY QM SUBSCRIPTION AGREEMENT (hereinafter the “Agreement”) is entered into by and between Otuvy, Inc., a Utah corporation (hereinafter “Otuvy”), with an office located at 460 N. University Ave., Suite 203, Provo, Utah 84601, USA, and the Organization placed on the Otuvy QM Order Form attached hereto and/or entered into between the parties, and by this reference made a part hereof (hereinafter “Client”).

 

RECITALS

 

A.  Otuvy has developed and continues to develop Software for use in the service and/or other industries. Otuvy grants licenses to others giving them certain rights, including, the right to Use the Otuvy QM Subscription Services, to use the Documentation, and to use other services and/or products provided by Otuvy or its designees, directly or indirectly, subject to the provisions of their respective agreements. 

 

B.  Client desires to Use the Otuvy QM Subscription Services, use the Documentation, and/or use/purchase other services and/or products provided by Otuvy or its designees, directly or indirectly, as set forth in this Agreement, and to pay certain Fees to Otuvy for such.

 

C.   Client has certain Client Data in need of protection, and Otuvy has certain Confidential Information in need of protection.  Both Client and Otuvy agree to protect such Client Data and Confidential Information, respectively, as set forth and agreed upon in this Agreement. 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Otuvy and Client agree as follows:

 

  1. Definitions.  Certain capitalized terms/words throughout this Agreement are defined in Exhibit A to this Agreement and by this reference made a part hereof.

2. Scope of License and Activities.

Your License to Use Otuvy QM

 

2.1 Grant of License.  Subject to Client’s performance of its obligations under this Agreement, and subject to the limitations set forth herein, Otuvy grants to Client a limited, non-transferable, non-assignable license during the Term of this Agreement giving Client a nonexclusive right within the United States and/or the Country/Countries set forth in the Otuvy QM Order Form:

(a) Otuvy QM Subscription Services and Other Services/Products - to Use those parts of the Otuvy QM Subscription Services and to use other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users that Client is paying User License Fees or other Fees for, respectively; and

(b) Documentation - to use the Documentation solely for internal use by Client and/or its Users for those purposes contemplated by this Agreement. 

 

Guidelines for the License

 

2.2 Third Party-Background Technology. Otuvy may use Third Party-Background Technology in the development of the Software, Otuvy QM Subscription Services, Documentation, and/or other services and/or products provided by Otuvy or its designees, directly or indirectly. There may be certain terms and conditions governing such use that may extend to Client and/or its Users. In each case, by Using the Otuvy QM Subscription Services, using the Documentation, and/or using such other services and/or products, Client agrees to be bound to such terms and conditions.

 

2.3 Following Procedures and Complying with General Laws.  Client and its Users shall comply with Otuvy’s standards and procedures with respect to set up and Use of the Otuvy QM Subscription Services, use of the Documentation, use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, and with respect to the Software, as provided by Otuvy from time to time.  Client shall comply with all applicable laws, regulations and rules, including, but not limited to, those associated with the license and rights granted to Client in this Section 2. All oral and written statements made by Client and Client Employees regarding the Use of the Otuvy QM Subscription Services and the use of any other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users shall be accurate and in compliance with Otuvy’s standards as may be provided by it from time to time.

 

2.4 Each User has its own User Name and Password.  The Users, if a Contact User or Service Provider User, shall secure and maintain their user name and password and comply with all procedural and other requirements and limitations imposed by Otuvy from time to time. Client shall comply with Otuvy’s requirements with respect to replacement of such Users. Only one person and only that same person shall be allowed to Use the Otuvy QM Subscription Services per each such User access.

 

2.5 Otuvy Retains Certain Rights. Except as explicitly expressed in this Section 2, nothing contained in this Agreement transfers to Client and/or its Users any license or rights in the Software, Otuvy QM Subscription Services, Documentation or other services and/or products that may be provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users.  Client grants Otuvy an unconditional, non-exclusive, irrevocable, worldwide license to use ideas and information of Client, Client Employees and its Users that relate to the Use of the Otuvy QM Subscription Services and/or use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client, Client Employees and its Users, but not to include Client Data, without further consideration, all as determined by Otuvy.  Otuvy retains all rights not granted to Client by this license, including, without limitation, an unrestricted right to promote, market, offer, license, sublicense, exploit and use the Otuvy QM Subscription Services, Software, Documentation and other services and/or products provided by Otuvy or its designees, directly or indirectly.   Both parties agree that Otuvy may modify the Otuvy QM Subscription Services, Software, Documentation and other services and/or products provided by Otuvy or its designees, directly or indirectly, as it deems appropriate in Otuvy’s sole discretion from time to time. Client agrees that any and all derivative works of the Otuvy QM Subscription Services, Software, Mark, the Documentation, and/or other services and/or products created and/or provided by Otuvy or its designees, directly or indirectly, shall be the property of Otuvy and may be licensed by Otuvy to others as determined by Otuvy from time to time, and Client hereby assigns all right, title and ownership interest therein, if any, to Otuvy.  All promotion, marketing, offering, licensing, sublicensing and use of the Otuvy QM Subscription Services, Software (in object code, source code, and/or all other forms and formats), Documentation and other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and Client Employees, other than as set forth in this Section 2, is prohibited. Client agrees, represents and warrants that under no circumstances may Client or Client Employees reverse-compile, reverse-assemble, reverse-engineer, or otherwise attempt to copy, duplicate, write or rewrite in any manner that is similar or related to, or that performs functions similar or related to, the Otuvy QM Subscription Services, Software (in object code, source code, and/or any other forms and formats), Documentation or other services and/or products created and/or provided by Otuvy or its designees, directly or indirectly. Among other restrictions that may apply, Client agrees to not register the name “Otuvy”, the Mark, or any part thereof, with any state or government agency and/or use the name “Otuvy”, the Mark, or any part thereof, as part of its name or in its advertisement. Client agrees that it is not obtaining the above license or entering into this Agreement to research, use, or discover Confidential Information, the Otuvy QM Subscription Services or other services and/or products provided by Otuvy or its designees, directly or indirectly, to use to compete against Otuvy or share information to others that may compete against Otuvy in any way. The licenses granted to Client in this Section 2 shall expire at the termination of this Agreement.

 

You Will Need a Computer, a Mobile Device and Some Standard Software to Use Otuvy QM

 

2.6 Third Party Software, Computer Hardware, Mobile Devices and Services Needed. Client agrees and acknowledges that Third Party Software, computer hardware, mobile devices, and/or services may be required to Use the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy  or its designees, directly or indirectly, to Client and/or its Users, and that such Third Party Software, computer hardware, mobile devices, and/or services and/or products are not provided in this Agreement, the Otuvy QM Subscription Services or the other services and/or products that may be provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users.  Client shall be responsible for acquiring, installing and using all such Third Party Software, computer hardware, mobile devices, and/or services and other materials necessary or to be used in connection with the Use of the Otuvy QM Subscription Services, use of the Documentation and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and/or its Users, all at Client’s own expense, and such must be consistent with Otuvy’s standards as may be provided by Otuvy from time to time.  Client agrees to abide by all applicable end user license agreements for any Third Party Software that Client or its Users will use in conjunction with the Use of the Otuvy QM Subscription Services, use of the Documentation or use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users. Third Party Software is the exclusive property of such third party licensors, and nothing herein shall grant Client or its Users any rights or interests in such Third Party Software except as provided in the applicable third party end user license agreements.

 

Using Information on Each Other’s Websites

 

2.7 Otuvy QM Login on Client’s Website.  Upon written consent from Otuvy, Client may place a link to Otuvy’s website and/or a login to the Otuvy QM Subscription Services on Client’s website.  Client agrees to comply with Otuvy’s guidelines, standards and restrictions as may be provided by it from time to time, and Client must get approval in writing by Otuvy prior to any final posting to Client’s website or changes thereto. Client agrees to immediately discontinue and remove such link and/or login upon request by Otuvy, upon suspension of the Use of the Otuvy QM Subscription Services by Client and its Users, or upon termination of this Agreement.

 

2.8 Using Client’s Logo Inside of the Otuvy QM Subscription Services for Branding Purposes. Client hereby grants Otuvy a limited, non-transferable, non-assignable license during the Term of this Agreement giving Otuvy a nonexclusive right to use Client’s name(s) and marks in connection with the Use of the Otuvy QM Subscription Services and the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and its Users according to standards governing such name and marks, notices, and the nature and quality of goods and services associated with such name and marks, as may be provided by Client from time to time to Otuvy in writing. In addition, and notwithstanding anything to the contrary in this Agreement, Client hereby grants the same license above to Otuvy, and hereby grants permission to Otuvy, to also use Client’s name(s) and marks, along with such standards governing such license above, on Otuvy’s website(s) and other media to advertise, promote and market Otuvy’s products and services.

3. Payments and Related Matters.

 

These are the Required Fees

 

3.1 User License Fees. Client shall pay User License Fees to Otuvy for the maximum number of Service Provider User Licenses pre-determined by Client for a billing period, starting with those Licenses notated on the Otuvy QM Order Form, and for each billing period thereafter until re-determined by Client, regardless of whether Service Provider Users are assigned to such Licenses or not within a billing period, and regardless of whether such Service Provider Users assigned to such Licenses Use the Otuvy QM Subscription Services or not within a billing period.  Client may only create Service Provider Users up to and including the maximum number of Licenses purchased for a billing period.  There will be no credit or refund given to Client if Client has less Service Provider Users than Licenses in any given billing period.  The billing period shall be as notated on the Otuvy QM Order Form unless otherwise changed as set forth below.  Each billing period will automatically renew for the same length of billing period as the previous billing period, with Client paying for the same Licenses from the previous billing period, unless Client gives a written notice to Otuvy prior to the end of the current billing period to (a) decrease or increase its Licenses as set forth herein, (b) change the length of the billing period (User License Fees per License may increase and some services may not be available for any billing period less than annual), or (c) terminate this Agreement (requires a thirty (30) day written notice to Otuvy prior to the end of the current billing period).  Client agrees to maintain the minimum number of Licenses outlined and set forth in the Otuvy QM Order Form under “Additional Terms and Conditions”. The first billing period will start on the “Subscription Start Date” and will renew on the “Subscription Renewal Date” as notated on the Otuvy QM Order Form.  Contact Users are free and unlimited, and will not be considered in determining User License Fees. 

 

3.2 Changing User License Fees by Changing Licenses.  During any billing period, and at any time, Client may increase or decrease the maximum number of Licenses by sending written notice to Otuvy.  To decrease the maximum number of Licenses, before the effective date of such written notice as set forth below, Client shall inactivate any Service Provider Users beyond the reduced maximum number of Licenses desired.  The reduction in the maximum number of Licenses will be effective upon such written notice or as otherwise set forth in the notice, and the reduction in User License Fees for such reduction will take effect on the next billing period.  There will be no refund or credit given for such reduction of Licenses in the billing period in which such written notice is effective.  To increase the maximum number of Licenses, the increase in the maximum number of Licenses will be effective immediately upon such written notice or as otherwise set forth in the notice, and the increase in User License Fees will be effective the effective date of the increase in the maximum number of Licenses and be pro-rated and due immediately by Client and paid to Otuvy for the billing period in which such written notice was effective, and the new User License Fees for such increase shall be paid by Client to Otuvy for each billing period thereafter until such maximum number of Licenses are re-determined by Client as set forth above. 

 

Here are some Other Services and/or Products if You Choose to Purchase Them

 

3.3 Other Services and/or Products.  Otuvy or its designees, directly or indirectly, may provide other services and/or products for Client to purchase from time to time including, but not limited to, Business Intelligence Platinum & Report Writer Services, Child Account Services, White Label Branding, On-Site Training, and Admin Assist Services.  If Client chooses to purchase such services and/or products from Otuvy, Client shall pay the respective Fees for such services and/or products to Otuvy.  Some services and/or products may not be available unless Client is paying User License Fees for a minimum of an annual billing period.    

 

Here are Our Free Services

 

3.4 Support Services.  Otuvy or its designees, directly or indirectly, shall provide Support Services to Client and/or its Users for the Use of the Otuvy QM Subscription Services by Client and/or its Users, at no additional cost to Client. 

 

Guidelines for Paying Fees

 

3.5 When User License Fees Are Due. Client shall pay to Otuvy User License Fees on the first day of each billing period for the maximum number of Service Provider User Licenses pre-determined by Client for that billing period (unless otherwise set forth under the “Payment Terms” on the Otuvy QM Order Form), and on the effective date of the increase in the maximum number of Licenses within a billing period as set forth above for any pro-rated User License Fees for such increase.

 

3.6 When Fees For Other Services and/or Products Are Due. All other Fees besides User License Fees shall be due immediately upon Client’s purchase of the services and/or products associated with such Fees. 

 

3.7 Taxes. Fees and any other amounts payable pursuant to this Agreement do not include any Taxes.  Client shall pay to Otuvy or the applicable taxing authorities, as appropriate in each case, the amount of any Taxes, including, without limitation, any applicable interest or penalties in connection therewith, that Client or Otuvy is or becomes obligated to pay based on the license or other rights granted to Client herein, or the Fees, and any Taxes and applicable interest or penalties in connection therewith shall be in addition to all other amounts payable to Otuvy under this Agreement.  Otuvy shall honor any valid, applicable tax exemption certificate provided by Client.

 

3.8 How Fees Are To Be Paid.  All Fees paid by Client to Otuvy shall be in United States currency and in a form approved by Otuvy. Client shall pay all Fees directly to Otuvy. Client shall continually provide Otuvy with current valid credit card information and/or bank account information to pay User License Fees and other Fees and amounts to Otuvy. Client hereby authorizes Otuvy to use such information to pay amounts owed by Client to Otuvy as set forth above.   

 

3.9 Changes In Fees. The Fees and dollar amounts of the Fees shall be determined by Otuvy from time to time in its sole discretion and shall be effective the first day of the next billing period after notice to Client as set forth below.  The current Fees and the dollar amounts of the Fees are set forth in the Otuvy QM Order Form.  Otuvy shall notify Client of any changes in the Fees or the dollar amounts of the Fees at least thirty (30) days prior to the end of a billing period for the next billing period. 

 

3.10 Late Payments Accrue Interest. All amounts remaining unpaid by Client fourteen (14) days after the due date shall accrue interest from the due date until paid in full at a rate equal to the lesser of 1.5% per month or the highest interest rate allowed by law, from the date due until paid.

 

What Happens if You Do Not Pay Fees When Due

 

3.11 Suspension of Services for Non-Payment and Re-Activation.  In the event of any default in timely payment of any Fees or other amounts due by Client to Otuvy within fourteen (14) days after the due date of such payment as set forth above, Otuvy may, in its discretion, at any time and without notice, suspend the Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and its Users.  Before Otuvy shall re-activate the Use of the Otuvy QM Subscription Services and/or other such services and/or products for Client and/or its Users, Client must pay to Otuvy the full amount owed for any and all Fees and other amounts due by Client to Otuvy plus any interest accrued.

 

User License Fees Credit or Refund for Uptime Less Than the Guarantee

 

3.12 Uptime Guarantee of 99.95%. If Client is paying for the “Enterprise Plus” base package and Client is not in default of any of the terms and conditions in this Agreement including paying Fees due to Otuvy when due, and the Uptime of the Otuvy QM Subscription Services excluding Planned Downtime is less than ninety-nine and ninety-five hundredths percent (99.95%) in any given month, Client shall be entitled to a credit, or refund, upon written request by Client to Otuvy, of the applicable portion of the monthly pro-rated User License Fees for that month as set forth below, all as determined by Otuvy in its sole discretion (herein the “99.95% Uptime Guarantee”):

 

 

3.13 Exclusions. Notwithstanding anything to the contrary in this Agreement, the 99.95% Uptime Guarantee shall not apply to any suspension, termination or unavailability of the Use of the Otuvy QM Subscription Services by Client and/or its Users, or any other Otuvy performance issues: (a) that result from suspension or termination of the Use of the Otuvy QM Subscription Services by Client and/or its Users as authorized and set forth in this Agreement; (b) caused by factors outside of Otuvy’s reasonable control, including any force majeure or Internet access or related problems beyond the demarcation point of the Otuvy QM Subscription Services; (c) that result from any actions or inactions of Client or its Users; or (d) that result from Client’s or its User’s use of any Third Party Software or third party computer hardware, mobile devices and/or services.

4. Protection of Data.

Protection and Ownership of Your Data and Information

 

4.1 Client Owns Its Client Data. Client Data shall remain the sole property of Client and/or its Users, respectively.

 

4.2 Restricted Client Data License to Otuvy. Client hereby grants Otuvy a license giving Otuvy the right to store Client Data and the right to access, view, edit, copy, share and use Client Data as set forth in this Agreement and for those purposes and situations set forth in Otuvy’s privacy notice and security information as amended from time to time by Otuvy and posted on the website where Client and/or its Users log on to Use the Otuvy QM Subscription Services. Otuvy and Otuvy Employees shall have the right to access, view, edit, copy, share and use Client Data for the purpose of setting up the Otuvy QM Subscription Services, providing any training or services to Client and/or its Users, fulfilling Otuvy’s obligations in this Agreement, resolving technical support and other questions from Client and/or its Users, testing functionality, resolving problems or errors in the Otuvy QM Subscription Services or other services and/or products provided by Otuvy or its designees, directly or indirectly, improving the Otuvy QM Subscription Services or other services and/or products provided by Otuvy or its designees, directly or indirectly, sending limited and necessary information to third parties who provide support services for Otuvy, contacting Client and/or its Users, sending Client information, suspected violation of this Agreement, as required by law, to determine amounts to charge Client for the Use of the Otuvy QM Subscription Services and for the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and/or its Users, and collecting and storing information about Client’s and/or its Users’ visits to Use the Otuvy QM Subscription Services and/or to use other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users for internal purposes.

 

4.3 Restricted Client Data License to Certain Others. Client hereby also grants Client Employees, its Users and others who may have access to Client Data (i.e. those who are customers of Client that may view reports of Client Data, but are not a Contact User, that Client, its Users, or Client Employees makes available to them, directly or indirectly) a license giving Client Employees, its Users, and those others the right to access, view, edit, copy, share and use Client Data.  

 

4.4 Anonymous Client Data for Benchmarking Purposes. Client hereby grants Otuvy a license giving Otuvy the right to access, compile, copy, distribute and display anonymous Client Data (“anonymous” means without disclosing any identifying information about Client, its Users, its clients, its buildings, or other personal identifying information about Client and/or its Users) for purposes of benchmarking, measuring, and/or comparing such anonymous Client Data (i.e. number of complaints in one area versus number of complaints in other areas).

 

4.5 Client Data Available after Termination. Upon written request by Client to Otuvy, within thirty (30) days after the effective date of termination of this Agreement, and upon all Fees and amounts owed by Client to Otuvy being paid to Otuvy, Otuvy shall make available to Client certain Client Data in a certain form and format, all as determined by Otuvy in its sole discretion. After such thirty (30) day period after such termination, Otuvy shall have no obligation to maintain or provide Client Data to Client. Otuvy assumes no liability for loss of Client Data.

 

4.6 Otuvy’s Promise to Keep Client Data Confidential.  Otuvy agrees to ensure that every known individual to Otuvy having access to Client Data through Otuvy (excluding however those individuals having access to anonymous Client Data as set forth in Section 4.4 above, excluding Client Employees and Client’s Users, and excluding all other individuals who may view or have access to Client Data through or because of Client, its Users, Client Employees or others) agrees in writing to be bound by the confidentiality provisions of this Section 4.6. Otuvy agrees not to use or disclose any Client Data for any purpose outside the scope of this Agreement, except with Client’s prior written permission. Notwithstanding the foregoing, for confidentiality purposes of this Section 4.6 only, “Client Data” shall not include data, material, or information (a) that is generally available to the public at the time of disclosure, or which, thereafter, through no act or failure to act on the part of Otuvy becomes generally available to the public; (b) that is generally known in the industry in which Client does business; (c) that is readily ascertainable by proper means by competitors of Client, through sources independent of Client and/or Otuvy, through no act or fault of Otuvy; (d) which, prior to the receipt of the same, was known to Otuvy, as evidenced by written record; or (e) that is considered to be the Software, the Documentation, the Marks, the Otuvy QM Subscription Services, or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, within the provisions of this Agreement.  Notwithstanding anything to the contrary in this Agreement, Client grants permission to Otuvy to disclose that Client has executed this Agreement and is authorized to Use the Otuvy QM Subscription Services to the National Service Alliance (if Client is a member of such organization) and SourceAmerica (if Client is a CRP or NPA associated with SourceAmerica).  Other than that set forth above in this Section 4.6, Client is solely responsible for the confidentially of Client Data.

 

Protection and Ownership of Our Data and Information

 

4.7 No Use or Disclosure of Confidential Information.  Neither Client nor Client Employees shall use, manufacture, design, engineer, decompile, reverse engineer, register, disassemble, file applications for, communicate, cause to be communicated, distribute, copy, sell or disclose any Confidential Information for its own use or for any other purpose other than the reasonable purposes associated with the license granted to Client along with all of its limitations and restrictions as set forth in Section 2 of this Agreement, without the prior written consent of Otuvy.  

 

4.8 Other Agreements that Relate to the Protection of Confidential Information.  Client agrees to confine access to such Confidential Information to Client Employees having a need to know the Confidential Information for the reasonable purposes set forth above and who have been advised by Client of the confidential and proprietary nature of the Confidential Information, and to ensure that each such Client Employee agrees in writing to be bound by the confidentiality provisions of this Agreement. Client acknowledges and agrees that its performance of any of the terms or provisions of this Agreement and the fulfilling of any of its duties hereunder do not and will not breach any other agreement entered into by Client prior to Client entering into this Agreement, violate any trade secrets of any third party, or violate any law. Furthermore, during the Term of this Agreement, Client agrees to not enter into any agreement, whether written or oral, at any time, which would be or is in conflict with the terms of this Agreement.

 

4.9 Protection of Intellectual Property and Confidential Information.  All Intellectual Property is the exclusive property of Otuvy.  Client shall not attack, challenge or do anything adverse with respect to the Intellectual Property or Otuvy’s rights therein.  Client and Otuvy acknowledge and agree that (a) the disclosure of Confidential Information to Client and/or Client Employees creates a relationship of confidence and trust; (b) unauthorized use or disclosure of Confidential Information by Client or Client Employees would cause substantial loss and irreparable harm to Otuvy; and (c) Client shall immediately notify Otuvy in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information, or any breach of this Agreement by Client or Client Employees, that may come to Client’s or Client Employees’ attention.  Client and Otuvy further acknowledge and agree that Client (on behalf of itself and Client Employees) shall deal with and treat the Confidential Information, in total and complete confidence as trade secrets, and shall take reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information, to maintain the confidentiality of the Confidential Information, but in no event less than reasonable precautions and protections.  Client agrees to use proper copyright, patent, trademark and service mark notices and to place them in the location, manner, form and format as may be specified by Otuvy from time to time.  Any lack of copyright notice does not imply unrestricted or public access. No duplication, usage, disclosure, or publication thereof, of any Intellectual Property, in whole or in part, for any purpose is permitted, except that which is expressly permitted by this Agreement. Client shall include in all copies made by it notices of copyright and other proprietary rights included by Otuvy in or on the Mark, the Otuvy QM Subscription Services, the Software, the Documentation, or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, or any and all derivative works of the foregoing.

5. Warranties and Limitation of Liability.

 

These are Standard Warranty Terms Used in Many Software Licenses

 

5.1 Otuvy’s Warranty.  Otuvy warrants to Client for the Term of this Agreement that, as long as Client and its Users follow instructions and recommendations of Otuvy and this Agreement, the Otuvy QM Subscription Services shall perform substantially in accordance with the functional specifications provided to Client by Otuvy attached herewith as Exhibit B and by this reference made a part hereof. Otuvy reserves the right to modify such functional specifications from time to time in its sole discretion. Otuvy does not warrant that the Otuvy QM Subscription Services or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users shall operate in combination with Third Party Software selected by Client, or that the Otuvy QM Subscription Services or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users shall operate uninterrupted or free of errors.  If the Otuvy QM Subscription Services do not perform as warranted in this Section 5.1, as determined by Otuvy, Client’s sole and exclusive remedy shall be as follows: Otuvy shall undertake reasonable efforts to correct the Otuvy QM Subscription Services, and if after undertaking such reasonable efforts, Otuvy determines that it is unable to correct the Otuvy QM Subscription Services, Otuvy shall refund to Client an amount equal to a pro rata portion of the User License Fees  paid by Client to Otuvy for the non-conforming portion of the Otuvy QM Subscription Services for the respective period of time of such non-conformity, but not to exceed ninety (90) days, all as determined by Otuvy from time to time in its sole discretion. If Client qualifies for the 99.95% Uptime Guarantee as set forth herein, such 99.95% Uptime Guarantee will work in conjunction with the limited warranty in Section 5 of this Agreement to give the most favorable benefit to Client as determined by Otuvy in its sole discretion.

 

5.2 Warranty Conditions and Limitations.  The limited warranties in Section 5.1 above are made to and for the benefit of Client only and are conditioned upon Client’s compliance with the terms of this Agreement, and upon Client’s compliance with the Documentation and other reasonable instructions as may be provided by Otuvy from time to time. The limited warranties in question shall not apply to the extent that the Otuvy QM Subscription Services fail to perform as warranted under Section 5.1 above because of, or would not have so failed but for: (a) any modifications made to the Software or the Otuvy QM Subscription Services other than those modifications made by Otuvy under this Agreement; (b) Use of the Otuvy QM Subscription Services in connection or in combination with any computer hardware, mobile device or Third Party Software not expressly approved or recommended by Otuvy in writing; or (c) installation or Use of the Otuvy QM Subscription Services contrary to the specifications and directions contained in the Documentation or other reasonable instructions of Otuvy.

 

5.3 Disclaimers.  THE WARRANTIES SET FORTH IN SECTION 5.1 ABOVE STATE OTUVY’S SOLE AND EXCLUSIVE WARRANTIES TO CLIENT CONCERNING THE SOFTWARE, OTUVY QM SUBSCRIPTION SERVICES, DOCUMENTATION, PHONE/EMAIL/WEBINAR/CHAT SUPPORT, OTUVY QM KNOWLEDGE BASE, IMPLEMENTATION SERVICES, ADMIN ASSIST SERVICES, SUPPORT SERVICES, BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, ON-SITE TRAINING, CHILD ACCOUNT SERVICES, WHITE LABEL BRANDING, AND ALL OTHER ITEMS, PRODUCTS AND SERVICES PROVIDED HEREUNDER AND THE EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 ABOVE, THE SOFTWARE, THE OTUVY QM SUBSCRIPTION SERVICES, THE BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, THE OTUVY QM KNOWLEDGE BASE, THE CHILD ACCOUNT SERVICES, THE WHITE LABEL BRANDING, AND DOCUMENTATION ARE PROVIDED STRICTLY “AS IS,” AND OTUVY MAKES NO ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE OTUVY QM SUBSCRIPTION SERVICES, SOFTWARE, DOCUMENTATION, PHONE/EMAIL/WEBINAR/CHAT SUPPORT, OTUVY QM KNOWLEDGE BASE, IMPLEMENTATION SERVICES, ADMIN ASSIST SERVICES, SUPPORT SERVICES, BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, ON-SITE TRAINING, CHILD ACCOUNT SERVICES, WHITE LABEL BRANDING, OR ANY MATTER WHATSOEVER. IN PARTICULAR, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 ABOVE, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE, ARE EXPRESSLY EXCLUDED. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY OTUVY. CLIENT HEREBY DISCLAIMS ANY RELIANCE ON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. 

 

5.4 Liability Limitations.  IN NO EVENT SHALL OTUVY, OTUVY EMPLOYEES, OR SALES CONTRACTORS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR CLIENT DATA, COST OF RECREATING LOST DATA OR CLIENT DATA, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY LICENSE, INCLUDING, BUT NOT LIMITED TO, THE FURNISHING, PERFORMANCE OR USE OF THE OTUVY QM SUBSCRIPTION SERVICES, SOFTWARE, DOCUMENTATION, PHONE/EMAIL/WEBINAR/CHAT SUPPORT, OTUVY QM KNOWLEDGE BASE, IMPLEMENTATION SERVICES, ADMIN ASSIST SERVICES, SUPPORT SERVICES, BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, ON-SITE TRAINING, CHILD ACCOUNT SERVICES, WHITE LABEL BRANDING, OR OTHER ITEMS, PRODUCTS OR SERVICES PROVIDED HEREUNDER OR ANY DELAY IN DELIVERY OR FURNISHING THE OTUVY QM SUBSCRIPTION SERVICES, SOFTWARE, DOCUMENTATION, PHONE/EMAIL/WEBINAR/CHAT SUPPORT, OTUVY QM KNOWLEDGE BASE, IMPLEMENTATION SERVICES, ADMIN ASSIST SERVICES, SUPPORT SERVICES, BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, ON-SITE TRAINING, CHILD ACCOUNT SERVICES, WHITE LABEL BRANDING, OR SAID ITEMS, PRODUCTS OR SERVICES, EVEN IF OTUVY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OTUVY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM OTUVY’S NEGLIGENCE, SHALL IN NO EVENT BE GREATER THAN THE AMOUNT OF THE USER LICENSE FEES PAID TO OTUVY BY CLIENT DURING THE LAST SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. OTUVY SHALL HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY ALLEGED INFRINGEMENT RELATING TO THE MARK, OTUVY QM SUBSCRIPTION SERVICES, SOFTWARE, DOCUMENTATION, PHONE/EMAIL/WEBINAR/CHAT SUPPORT, OTUVY QM KNOWLEDGE BASE, IMPLEMENTATION SERVICES, ADMIN ASSIST SERVICES, SUPPORT SERVICES, BUSINESS INTELLIGENCE PLATINUM & REPORT WRITER SERVICES, ON-SITE TRAINING, CHILD ACCOUNT SERVICES, OR WHITE LABEL BRANDING, OR CLAIM THEREOF.

 

5.5 Exclusion of Unauthorized Warranties.  No employee, agent, representative, affiliate or Sales Contractor of Otuvy, or Otuvy Employees, has authority to bind Otuvy to any oral representations or warranty concerning the Software, Otuvy QM Subscription Services, Documentation, Phone/Email/Webinar/Chat Support, Otuvy QM Knowledge Base, Implementation Services, Admin Assist Services, Support Services, Business Intelligence Platinum & Report Writer Services, On-Site Training, Child Account Services, White Label Branding, or any other items, products and/or services hereunder. Any written representation or warranty not expressly contained in this Agreement is not authorized and is unenforceable.  No amendment to this Agreement altering or adding a representation or warranty shall be effective unless set forth in a mutual writing executed by an authorized officer of Otuvy and Client and otherwise consistent with the requirements of Section 7.15 below.

 

5.6 Indemnification.  Client shall hold harmless, defend and indemnify Otuvy and Otuvy Employees from and against any and all claims, losses, causes of action, judgments, damages, costs, and expenses including, but not limited to, attorney’s fees, because of bodily injury, sickness, disease or death, or injury to or destruction of tangible or intangible property or any other injury, damage, loss, cost or expense resulting from or arising out of (a) nonperformance or breach of this Agreement by Client, or (b) any act, error, omission, negligence or misconduct, on the part of Client, its Users, or Client Employees.

6. Term and Termination.

The Term of this Agreement

 

6.1 Term. The Term of this Agreement shall commence on the Effective Date and shall continue until terminated by either party as set forth below. 

 

Suspension of the Otuvy QM Subscription Services without Terminating this Agreement

 

6.2 Suspension of the Otuvy QM Subscription Services. Otuvy may at any time and without notice, temporarily and/or permanently suspend or terminate the Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and its Users upon the occurrence of certain events set forth in this Agreement and upon suspected breach of this Agreement by Client, all as determined by Otuvy from time to time in its sole discretion.  Notwithstanding the foregoing, Client and Otuvy may mutually agree to temporarily suspend the Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and its Users without terminating this Agreement. 

 

You Can Terminate this Agreement with a 30-Day Notice

 

6.3 Termination.  Either party may terminate this Agreement with or without cause upon a thirty (30) day written notice to the other party. This Agreement may be terminated by mutual written consent of all parties. This Agreement may be terminated immediately by Otuvy upon any breach of this Agreement by Client including, but not limited to, upon non-payment of any Fees by Client for more than fourteen (14) days, all as determined by Otuvy from time to time in its sole discretion. Otuvy’s exercise of its termination rights under this Section 6.3 shall not entitle Client to a refund of, or relieve Client of any obligation to pay, any portion of any Fees or other payments or amounts which are payable to Otuvy under this Agreement. In the event of a breach or the threat of a breach of this Agreement by Client, Otuvy, in addition to any other remedies it may have herein and/or at law or in equity, shall be entitled to obtain a temporary restraining order, preliminary injunction, and other appropriate relief so as to specifically enforce the terms of this Agreement without the necessity of posting a bond or other surety.

 

What Happens if this Agreement is Terminated

 

6.4 Post-Termination Obligations.  Upon termination of this Agreement, (a) the licensed rights granted to Client shall terminate, with Client ceasing all use thereof, including the Use of the Otuvy QM Subscription Services, the use of the Documentation and the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users; (b) Client shall cease all use of Intellectual Property and Confidential Information and shall return to Otuvy all Intellectual Property, Confidential Information, Documentation, documents, and items and materials belonging to Otuvy; (c) Client shall immediately pay to Otuvy all amounts due or owing; (d) Otuvy may terminate the Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users by Client and its Users; (e) Otuvy may take those actions authorized under Section 4.5 of this Agreement relating to termination; (f) Otuvy may continue to access and use anonymous Client Data as referenced and authorized in Section 4.4 of this Agreement; (g) Client shall immediately remove any links and/or logins from its website as set forth in Section 2.7 of this Agreement; and (h) all rights granted Otuvy and Otuvy Employees, and all duties imposed upon Client and/or Client Employees, under this Agreement, in all Sections of this Agreement, shall survive termination of this Agreement, all as determined by Otuvy in its sole discretion.

7. General.

This Clarifies Our Business-to-Business Relationship

 

7.1 Relationship of the Parties.  Client acknowledges and agrees that the relationship created under this Agreement is that of independent contractors.  This Agreement does not in any way create the relationship of principal and agent, franchisor and franchisee, partners or employer and employee between the parties, and in no circumstances shall either party, or Otuvy Employees, Client Employees, or similar persons, be considered the agents or employees of the other party.  Except as otherwise provided in this Agreement, Client shall be responsible for the management and control of Client’s business, including, without limitation, directing the daily operations of its business, determining the specific means of achieving performance guidelines, directing and managing Client’s employees, paying all costs and expenses associated with Client’s business (including all of its own employee wages, fees, benefits, taxes, debts and other obligations), purchasing all necessary supplies, samples, inventory, products, materials and other items, obtaining necessary financing and other matters. Client agrees to not solicit for hire or independent services of, or hire or contract with, any Otuvy Employees or contractors of Otuvy, or former employees of Otuvy, during the Term of this Agreement and for two (2) years thereafter, without prior written consent from Otuvy.  In addition, Client acknowledges and agrees that the relationship created between Otuvy and Sales Contractors is that of independent contractors. Any agreement entered into between Otuvy and Sales Contractors does not in any way create the relationship of principal and agent, franchisor and franchisee, partners, or employer and employee between Otuvy and Sales Contractors, and in no circumstances shall Otuvy or Sales Contractors be considered the agents or employees of the other party. Sales Contractors are not authorized officers of Otuvy and do not have authority to enter into agreements with Client in behalf of Otuvy, including this Agreement. Client should not rely on any oral or written representations made by Sales Contractors regarding information relating to this Agreement or otherwise.

 

7.2 Franchise and Business Opportunity Status. This Agreement does not in any way infer or contemplate that Otuvy is offering a franchise, business opportunity, or sales or marketing program to Client.  Otuvy and Sales Contractors each act as independent contractors as specified herein, and there are no representations, assurances or guarantees of any profits made by Otuvy or Sales Contractors to Client pursuant to this Agreement or that Client will make enough to exceed what it may pay under this Agreement. Client agrees that Otuvy and Sales Contractors are not exercising and do not have authority to exercise significant control over Client’s method of operation, business organization, promotional activities, management, marketing plan or business affairs, and that Otuvy and Sales Contractors are not providing and will not provide significant assistance to Client in Client’s method of operation, business organization, promotional activities, management, marketing plan or business affairs.  Client is wholly responsible for its own sales and marketing efforts and activities.  Client agrees and acknowledges that Otuvy and Sales Contractors are not providing any accounts, locations, customers, or names of anyone who could assistant Client in such a way.

 

Other Companies in Your Area may Use Otuvy QM

 

7.3 Competition. Client agrees and acknowledges that it may compete against others who may use the Otuvy QM Subscription Services, use the Documentation, and/or use other services and/or products provided by Otuvy or its designees, directly or indirectly, that are similar to or the same as those in this Agreement.

 

What Happens if we Disagree

 

7.4 Dispute Resolution.  Notwithstanding anything to the contrary in this Agreement, except as otherwise provided in Subsection (3) below, the parties to this Agreement agree that it is in their best interest to resolve disputes between them in an orderly fashion and in a consistent manner, and that the provisions of this Section 7.4 shall survive termination of this Agreement.  The parties agree as follows:

 

(1) The parties shall use their best efforts to resolve and settle by direct, private negotiation of any disputes, controversies or claims between them, their affiliates, owners, shareholders, members, officers, directors, managers, employees and agents arising out of, relating to or pertaining to this Agreement, the provisions of this Agreement, any breach of this Agreement or the provisions therein, enforcement of this Agreement or the provisions therein, or the relationship of the parties created by this Agreement (hereinafter “Dispute”).  Both parties may seek the advice and assistance of legal counsel in connection with any such negotiation.

 

(2) If the parties cannot resolve and settle a Dispute by private negotiations as referred to in Subsection (1) above within sixty (60) days after one party gives the other written notice that a Dispute exists, the parties mutually agree to submit the Dispute to arbitration administered by the American Arbitration Association in Salt Lake City, Utah in the United States under its Commercial Arbitration Rules on demand of either or both parties.  The Dispute shall be referred to a single arbitrator, if the parties agree upon one, or otherwise to three (3) arbitrators, one to be appointed by each party and a third arbitrator to be appointed by the first named arbitrators for each.  The award or determination of the matter shall be made by the arbitrator(s) and shall be conclusive, final and binding upon the parties.  Each party waives any right to contest the validity or enforceability of such award.  The parties agree to be bound by the provisions of any limitation on the period of time by which claims must be brought.  The parties agree that, in connection with any such arbitration proceeding, each will submit or file any claims which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure, as amended or any successor provisions thereto) within the same proceedings as the claim to which it relates.  The arbitrator or arbitrators shall apply Utah law and applicable federal law without regard to Utah conflicts of law provisions and shall make their award in accordance with and based upon the provisions of this Agreement and applicable law.  The parties further agree that arbitration shall be conducted on an individual, and not a class-wide, basis.  The arbitrator shall have the right to award or include in the award any relief which the arbitrator deems appropriate pursuant to this Agreement and applicable law in the circumstances, including, without limitation, money damages, specific performance, injunctive relief, and attorneys’ fees and costs, except that the arbitrator shall not award punitive or exemplary damages.  The parties understand that they are waiving their right to a jury trial with respect to the arbitration.  Judgment on the award rendered by the arbitrator(s) shall be in writing and may be entered in any court having jurisdiction thereof.

 

(3) In the event of a Dispute relating to Sections 2.1 (relating to the license or Use of the Otuvy QM Subscription Services, use of the Documentation and/or use of other services and/or products provided by Otuvy or its designees, directly or indirectly), 4.7 or 4.8 (relating to confidentiality), or 4.9 (relating to intellectual property and confidentiality rights) of this Agreement, the provisions of Subsections (1) and (2) above shall have no application to Otuvy and Otuvy may pursue actions in court or elsewhere as permitted by law, subject to the jurisdiction, venue, governing law, remedy and other provisions of this Agreement relating to the same.

 

7.5 Attorneys' Fees.  Each party shall pay their own attorneys’ fees. Notwithstanding the foregoing, if Otuvy incurs attorneys’ fees or costs in order to enforce the terms and conditions in Sections 2.1, 4.7, 4.8 or 4.9 of this Agreement, Otuvy shall be entitled to reimbursement of such attorneys' fees and costs from Client, in addition to all other rights and remedies Otuvy may have at law or in equity.

 

These are Standard Agreement Closing Terms

 

7.6 How Purchase Orders and Other Forms Affect this Agreement. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Client may use in connection with the Use of the Otuvy QM Subscription Services and/or use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users shall have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify this Agreement, regardless of any failure of Otuvy to object to such terms, provisions or conditions.

 

7.7 Force Majeure.  Neither party shall incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes wholly beyond the control and without the negligence of said party.  Such events, occurrences or causes shall include, without limitation, acts of nature, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the delay or failure to meet financial or payment obligations under this Agreement is expressly excluded.

 

7.8 Notices.  All notices under this Agreement shall be in writing and shall be deemed given on the earlier of the following: (a) on the date delivered in person or received; (b) on the date sent by email followed by hard copy, or fax followed by hard copy; (c) three business days after being deposited in the United States mail, postage prepaid, by first class, registered or certified mail; or (d) two business days after delivery to a nationally recognized express air courier, expenses prepaid.  All notices, other than delivery in person, shall be addressed to the parties as their addresses appear herein and in the Otuvy QM Order Form, unless proper written notice of a change of address has been given, in which event the notice shall be addressed to the new address. Notwithstanding the foregoing, for notices from Otuvy to Client, Otuvy may send an email to the “Client Email” outlined in the Otuvy QM Order Form or other email commonly used by Client in correspondence with Otuvy as determined by Otuvy in its sole discretion, and such notice shall be deemed given on the date the email was sent by Otuvy.

 

7.9 Waiver.  The failure of either party to take any action under this Agreement, or the waiver of a breach of this Agreement, shall not affect that party's rights to require performance hereunder or constitute a waiver of any subsequent breach.

 

7.10 Severability.  If any provision of this Agreement is found to be invalid or unenforceable by a court or tribunal, or by arbitration, whether due to particular time limits, unreasonableness or otherwise, it is agreed that the provision in question shall be reduced or otherwise modified by such court or tribunal, or arbitration, but only to the extent necessary to permit its enforcement and only in such court's jurisdiction.  If the particular provision cannot be reduced or modified to make it enforceable, that provision shall then be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect giving maximum validity and enforceability to this Agreement. 

 

7.11 Assignment.  This Agreement is personal to Client and neither this Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily, directly or indirectly, assigned or otherwise transferred or encumbered by Client without the prior written approval of Otuvy. This Agreement is fully assignable by Otuvy. Client shall notify Otuvy in writing within thirty (30) days of any transfer or assignment of any part of Client’s ownership.

 

7.12 Successors.  This Agreement shall be binding upon the parties and their heirs, successors, assigns, transferees, grantees, executors and administrators.

 

7.13 Governing Law.  This Agreement shall be governed by the laws of the state of Utah, without regard to Utah conflicts of law provisions.  Except as otherwise set forth herein, any civil action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of record of the state of Utah or the United States District Court, District of Utah, and each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.

 

7.14 Language. Both Client and Otuvy agree that the language of this Agreement, the Otuvy QM Subscription Services, Documentation, Phone/Email/Webinar/Chat Support, Otuvy QM Knowledge Base, Implementation Services, Admin Assist Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, shall be in the English language. Notwithstanding the foregoing, Otuvy may offer the Otuvy QM Subscription Services, Documentation, Phone/Email/Webinar/Chat Support, Otuvy QM Knowledge Base, Implementation Services, Admin Assist Services and/or such other services and/or products in different languages from time to time in the exercise of its sole discretion. Client hereby waives any and all claims against Otuvy and Otuvy Employees, and shall indemnify and defend Otuvy and Otuvy Employees, from claims made against Otuvy, Otuvy Employees, Client, or Client Employees, by Client’s Users or others, for any translation errors in the Otuvy QM Subscription Services, Documentation, Phone/Email/Webinar/Chat Support, Otuvy QM Knowledge Base, Implementation Services, Admin Assist Services and/or such other services and/or products provided by Otuvy or its designees, directly or indirectly. 

 

7.15 Entire Agreement; Modification; Headings. This Agreement (including any exhibits hereto as referenced herein and the Otuvy QM Order Form) shall be construed according to its plain meaning, and not for or against the drafting party.  Otuvy and Client acknowledge and agree that this Agreement (including any exhibits hereto as referenced herein and the Otuvy QM Order Form) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties and between Sales Contractors and Client with respect to said subject matter. Except for the terms and conditions below, this Agreement may not be altered, modified, amended, changed, rescinded or discharged in whole or in part, except by a written agreement executed by authorized officers of both Client and Otuvy.  Notwithstanding anything to the contrary in this Agreement, the terms and conditions of this Agreement (and subsequent agreements) may be unilaterally altered, modified, amended, changed, rescinded or discharged (except as to the Otuvy QM Order Form, Otuvy may only modify it to the extent stated in the Agreement), in whole or in part, at any time, by Otuvy in its sole discretion (hereinafter “Unilateral Changes”). Otuvy shall provide Client reasonable notice of any material Unilateral Changes prior to such material Unilateral Changes becoming effective as set forth in such notice. The continued Use of the Otuvy QM Subscription Services by Client and/or its Users after Unilateral Changes are effective (as to material Unilateral Changes, the effective date in the notice; and, as to other Unilateral Changes, the date posted to Otuvy’s website) shall be deemed as Client’s acceptance of such Unilateral Changes and Client agrees to be bound to such. If Client does not agree with the Unilateral Changes, Client may terminate this Agreement as set forth herein. In addition, there are certain terms and conditions that Client and/or its Users have agreed to with Otuvy or may be required to agree to with Otuvy prior to Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users and/or when Client and/or its Users Use the Otuvy QM Subscription Services and/or use such other services and/or products.  Notwithstanding anything to the contrary in this Agreement, these terms and conditions may also be unilaterally altered, modified, amended, changed, rescinded or discharged in whole or in part by Otuvy from time to time in its sole discretion and the continued Use of the Otuvy QM Subscription Services by Client and/or its Users shall be deemed as Client’s acceptance of such terms and conditions and Client agrees to be bound to such. In the event of any conflict, inconsistency or discrepancy between those terms and conditions and the terms and conditions of this Agreement, as modified, the terms and conditions of this Agreement shall govern. The section and paragraph headings herein have been inserted solely for convenience of reference and in no way define, limit or describe the scope or substance of any provision of this Agreement.  Where applicable, the masculine includes the feminine and the neuter, and vice versa.  Where applicable, the singular includes the plural and vice versa. 

 

7.16 Execution.  This Agreement shall be effective, and the Effective Date shall be, when this Agreement is signed by an authorized officer of Client and Otuvy on the Otuvy QM Order Form.  The signatories on the Otuvy QM Order Form each hereby confirm that he/she is an authorized officer for Client or Otuvy, respectively, and has authorization to enter into this Agreement on behalf of the party listed for which it is signing for.

 

7.17 Counterparts, Facsimile and Electronic Signatures.  This Agreement may be executed (on the Otuvy QM Order Form) in counterparts, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same agreement.  Facsimile signatures on counterparts of this Agreement (on the Otuvy QM Order Form) will be deemed original signatures. Electronic signatures (i.e. Esign) on counterparts of this Agreement (on the Otuvy QM Order Form) shall be deemed original signatures.

End of the Agreement with Exhibits to Follow

Version: August 9, 2023

Exhibit A

 

Definition of Terms

 

            This Exhibit A is an exhibit to the OTUVY QM SUBSCRIPTION AGREEMENT between Otuvy, Inc. (hereinafter “Otuvy”) and the Organization placed on the Otuvy QM Order Form attached hereto and/or entered into between the parties (hereinafter “Client”) and all exhibits and addendums thereto including, but not limited to, the Otuvy QM Order Form, as determined by Otuvy (hereinafter the “Agreement”), and is subject to the terms and conditions of said Agreement including the definitions therein.

 

  1. For purposes of the Agreement, following are some of the definitions of terms used in the Agreement and in its exhibits:

1.1 “Admin Assist Fees” shall mean the fee due and payable by Client to Otuvy for Admin Assist Services purchased by Client.

1.2 “Admin Assist” or “Admin Assist Services” shall mean the services that may be provided by Otuvy or its designees, directly or indirectly, that relate to any configuration or input of information, including, not but limited to, Client Data, in the Otuvy QM Subscription Services and/or in the other services and/or products provided by Otuvy or its designees, directly or indirectly, for Client or its Users.  

1.3 “Business Intelligence Platinum & Report Writer Fees” shall mean the fee due and payable by Client to Otuvy for Business Intelligence Platinum & Report Writer Services purchased by Client. 

1.4 “Business Intelligence Platinum & Report Writer” or “Business Intelligence Platinum & Report Writer Services” shall mean those optional customizable reporting software services provided within the Otuvy QM Subscription Services, as determined by Otuvy from time to time in its sole discretion.

1.5 “Child Account Fees” shall mean the fee due and payable by Client to Otuvy for Child Account Services purchased by Client.

1.6 “Child Account Services” shall mean the services that may be provided by Otuvy or its designees, directly or indirectly, that relate to the ability for Client to have separate instances of the Otuvy QM Subscription Services that may have certain portions of the Otuvy QM Subscription Services that may link to and/or may be viewable in Client’s Use of the Otuvy QM Subscription Services, for a recurring fee paid by Client to Otuvy as set forth in the Agreement, all as determined by Otuvy from time to time in its sole discretion.  Client must be paying User License Fees for a minimum of an annual billing period in order to purchase Child Account Services from Otuvy.

1.7 “Claim” shall mean any claim, demand, threat, suit or proceeding brought by a third party against Client to the extent that the claim, demand, threat, suit or proceeding alleges that Client’s authorized and proper Use of the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, in the form delivered by Otuvy to Client, directly infringes the claimant’s United States (or the Country/Countries set forth in the Otuvy QM Order Form) proprietary or intellectual property rights, including, but not limited to, patent, copyright, trademark or trade secret rights.

1.8  “Otuvy Employees” shall mean Otuvy, any of its affiliated entities or businesses, and any owner, officer, employee, distributor, contractor or agent of the foregoing.

1.9 “Otuvy QM Knowledge Base” shall mean a website that may be available to Service Provider Users which contains Documentation and may contain a user forum, as determined by Otuvy from time to time in its sole discretion.   Otuvy shall determine the content of the Documentation from time to time in its sole discretion. Although Otuvy shall make reasonable efforts to keep the Documentation up to date, Otuvy does not guarantee the accuracy of such content.  In addition, such content may become temporarily out of date until such content is updated as changes are made to the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly.

1.10 “Otuvy QM Order Form” shall mean the form with a reference to and/or attached to the Agreement that shall define the Client along with its name, address, country/countries residing and/or doing business in, entity type, state/territory of company/organization registration, and doing business as name, along with services and/or products initially purchased by Client, with their billing period length (for recurring services), along with the signatures of authorized officers of both Client and Otuvy binding Client and Otuvy to the respective OTUVY QM SUBSCRIPTION AGREEEMENT along with its exhibits and addendums including, but not limited to, such Otuvy QM Order Form (the “Agreement”).

1.11  “Otuvy QM Subscription Services” shall mean those services provided by Otuvy on a specific website(s) and/or web server(s) in connection with the Software, Third Party-Background Technology and/or Third Party Software including, but not limited to, software in object code form only that can be accessed through a certain web browser(s) and/or downloaded from certain application stores that can be utilized on certain computers and/or mobile, tablet or other devices, in the service and/or other industries, including, but not limited to, facility management, janitorial, building maintenance, and/or other fields, and that may relate to inspections, work orders, reports, communication, Business Intelligence Platinum & Report Writer Services, Child Account Services, White Label Branding Services, or other services and/or products in such service and/or other industries, and/or such other areas, according to which services and/or products are provided by Otuvy or its designees, directly or indirectly, and purchased by Client and/or licensed to Client herein, respectively, all as determined by Otuvy from time to time in its sole discretion.

1.12 “Client Data” shall mean data, material, or information submitted or provided by Client and/or its Users through the Use of the Otuvy QM Subscription Services or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users which is purchased by Client and/or licensed to Client herein, that is owned by Client and/or its Users, respectively.

1.13 “Client Employees” shall mean Client, and all owners, officers, employees, Users, and/or agents of Client.

1.14 “Confidential Information” shall mean any and all information, know-how, data, documents, items and materials that Otuvy has or shall have an interest in, or that are or shall be owned, developed, acquired or used by, or licensed to, or in the possession or control of, or that arise from, at any time, Otuvy, its businesses, activities, investigations, work of Otuvy Employees, Otuvy’s agents or contractors, utilization of Otuvy's equipment, supplies, facilities or information, in the past, present or future, whether in tangible, magnetic, digital or any other form, format or medium, and whether or not published, patented, copyrighted, registered or suitable therefore, and whether or not marked “confidential”, (a) that relates to business plans, strategies, operations, transactions, products, goods, services, assets, liabilities, software, source code, object code, algorithms, instructions, manuals, hardware, equipment, devices, facilities, ideas, technology, inventions, improvements, discoveries, trade secrets, copyrights, patents, patent applications, patent rights, intellectual property, registrations, applications, research, procedures, processes, methods, specifications, diagrams, designs, drawings, data, databases, accounting, finances, financials, financial records, taxes, tax returns, reports, agreements, this Agreement and the terms hereof, contracts, promotion, marketing, marketing ideas, marketing plans, marketing documents, advertising materials, distribution, management, pricing, customers, customer lists, potential services or customers, manufacturers, suppliers, distributors, owners, officers, managers, employees, representatives, agents, Otuvy Employees, contractors, records, files, lists, memos, correspondence, notes, documents, items, materials, the Software, the Otuvy QM Subscription Services, the Documentation, other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, or similar information regardless of the manner in which it is furnished or whether obtained by Client or Client Employees through observation of Otuvy’s facilities or procedures or otherwise; (b) that was provided to Otuvy by third parties under circumstances where Otuvy had a duty of non-disclosure; (c) that is generally regarded as confidential in the industry or business in which Otuvy is engaged; or (d) that is designated as confidential by Otuvy.  Notwithstanding the foregoing, the term "Confidential Information" does not include information (a) that is generally available to the public at the time of disclosure, or which, thereafter, through no act or failure to act on the part of Client or Client Employees, or through no illegal act of others, becomes generally available to the public, as evidenced by written publications or otherwise; (b) that is generally known in the industry in which Otuvy competes; (c) that is readily ascertainable by proper means by competitors of Otuvy, through sources independent of Client, Client Employees and/or Otuvy, through no act or fault of Client, Client Employees or Otuvy, or through any illegal act of others; or (d) which, prior to the receipt of the same, was known to Client, as evidenced by written record, unless such information is protected by other agreements.

1.15 “Contact User” shall mean an active User whose record is under the “Contact” tab of the “Service Provider” login of the Otuvy QM Subscriptions Services, as determined by Otuvy from time to time in its sole discretion.

1.16  “Documentation” shall mean written materials and/or videos relating to the Otuvy QM Subscription Services and/or other services and/or products which may be provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users including, but not limited to, user guides, information on the Otuvy QM Knowledge Base, technical manuals, release notes, installation instructions, other instructions or online help files regarding the Use of the Otuvy QM Subscription Services and/or the use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, generally provided by Otuvy to Client or others, directly or indirectly, and shall include any updated versions of Documentation as may be provided by Otuvy from time to time in its sole discretion during the Term of the Agreement.

1.17  “Effective Date” shall mean the first date in which the Agreement shall be a fully enforceable agreement, and Otuvy and Client shall be bound to the provisions hereof.

1.18  “Fees” shall mean User License Fees, On-Site Training Fees, Child Account Fees, White Label Branding Fees, Business Intelligence Platinum & Report Writer Fees, Admin Assist Fees, Support Fees, and other fees due and payable by Client to Otuvy that may be associated with (a) the Use of the Otuvy QM Subscription Services by Client and/or its Users; (b) other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users; or (c) the Agreement.

1.19 “Implementation Services” shall mean those services provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, initially, to assist Client and/or its Users to begin to Use the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, and includes Phone/Email/Webinar/Chat Support and five (5) hours of Admin Assist Services at no additional cost to Client within the first thirty (30) days after the Effective Date of the Agreement.  Any of the five (5) hours of the Admin Assist Services not used within such thirty (30) day period shall be cancelled and not available thereafter. Additional Admin Assist Services may be purchased by Client.

1.20 “Intellectual Property” shall mean all copyrights, patents, patent rights, trademarks, service marks, trade names, Confidential Information and other intellectual property rights of Otuvy relating to the Otuvy QM Subscription Services, Software, Documentation, and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, or otherwise, including, but not limited to, the Mark.

1.21  “Mark” shall mean the trademark, service mark and/or trade name “Otuvy QM”, including any modifications, variations and/or replacement trademarks, service marks and/or trade names.

1.22 “On-Site Training” shall mean those services provided by Otuvy or its designees, directly or indirectly, to set up the Use of the Otuvy QM Subscription Services and/or use of other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, for Client, and/or to train Client and/or its Users on how to Use the Otuvy QM Subscription Services and/or to use the other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, all at one of Client’s physical locations, all as determined by Otuvy from time to time in its sole discretion.

1.23 “On-Site Training Fee” shall mean the fee due and payable by Client to Otuvy for the On-Site Training purchased by Client.

1.24  “Phone/Email/Webinar/Chat Support” shall mean the limited phone, email, webinar, and chat assistance provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users relating to the Use of the Otuvy QM Subscription Services and/or the use of the other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, all as determined by Otuvy from time to time in its sole discretion. Phone/Email/Webinar/Chat Support is provided daily 8 am to 5 pm Mountain Time excluding weekends, holidays, and other days Otuvy or its designees are closed. Due to call volume and other reasons, those providing Phone/Email/Webinar/Chat Support, or the chat software, may be unavailable during the above times. If so, Users can leave a message so they can get their message responded to as soon as possible. Phone/Email/Webinar/Chat Support does not include Admin Assist Services.

1.25 “Planned Downtime” shall mean the time in which Otuvy may perform periodic backups, software upgrades, and other services that may require the Otuvy QM Subscription Services to be fully or partially unavailable.

1.26  “Sales Contractors” shall mean independent contractors appointed by Otuvy to perform such duties and services from time to time as agreed upon by Otuvy which may include promoting and/or marketing the Use of the Otuvy QM Subscription Services to Client and/or others and/or promoting and/or marketing other services/products provided by Otuvy or its designees, directly or indirectly, from time to time to Client and/or others as determined by Otuvy from time to time in its sole discretion.

1.27 “Service Provider User” shall mean an active User whose record is under the “HR” tab of the “Service Provider” login of the Otuvy QM Subscription Services that may have certain access to Use the Otuvy QM Subscription Services and/or use other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users. Each Service Provider User shall have one unique user name and password enabling access to certain areas of the “Service Provider” portion of the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users. Others in the same organization can get notified of certain communication activity in the Otuvy QM Subscription Services without being a Service Provider User and without accessing the Otuvy QM Subscription Services.

1.28 “Service Provider User License” or “License” shall mean the license for a Service Provider User to have access to Use those parts of the Otuvy QM Subscription Services that are purchased by Client and/or licensed to Client by Otuvy herein, whether a Service Provider User is assigned to such license or not, and whether such Service Provider User assigned accesses or Uses such license or not. 

1.29 “Software” shall mean that certain Otuvy computer software program in object code form only, useful in the service and/or other industries, including, but not limited to, facility management, janitorial, building maintenance, and/or other fields, including, but not limited to, that software in object code form only which is sometimes referred to by Otuvy as “Otuvy QM”, in any form or format as determined by Otuvy from time to time in its sole discretion, together with any modifications, corrections, improvements, enhancements and releases, in object code form only, that Otuvy may include now or hereafter, all as determined by Otuvy from time to time in its sole discretion. Except as otherwise provided in the preceding sentence, the Software shall not include any other products or services currently marketed by Otuvy, any new products or services developed and/or marketed by Otuvy, any additional products or services licensed by Otuvy after the Effective Date of this Agreement (unless such new or additional products or services are added to the Agreement pursuant to Section 7.15 in the Agreement), any Third Party-Background Technology, or any Third Party Software.

1.30 “Support Services” shall mean the support services relating to the Use of the Otuvy QM Subscription Services and/or use of other services and/or products by Client and/or its Users, as provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, and purchased by Client and/or licensed to Client herein, which includes (a) customized and strategic Implementation Services to Client and its Users for the first thirty (30) days after the Effective Date of the Agreement, (b) ongoing Phone/Email/Webinar/Chat Support with a three (3) business hour or less response time during the hours Phone/Email/Webinar/Chat Support is available for the initial response of each new request or message from Client or its Users, (c) group webinar trainings customized to Client for Client and its Users, (d) customized training videos for Client and its Users, (e) access to the Otuvy QM Knowledge Base, and (f) quarterly usage reviews and evaluations, all as determined by Otuvy from time to time in its sole discretion. The “customization” referred to within the Support Services are sometimes referred to as “Custom Software Implementation”. If Client purchases the Enterprise Plus package, the Client shall, in addition to the Support Services, be assigned a Customer Success Manager as determined by Otuvy in the exercise of its sole discretion.

1.31  “Tax” or “Taxes” shall mean any applicable sales and use taxes, transaction privilege tax, excise tax, tangible or intangible personal property taxes, or value added taxes on the sale or measured by the sales price.

1.32 “Term” shall mean the period in which all of the provisions of this Agreement are in force.

1.33 “Third Party-Background Technology” shall mean various development tools, routines, subroutines, and other programs, data and materials owned by third parties that Otuvy may use in the development of the Software, Documentation and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users.

1.34  "Third Party Software" shall mean any software owned by a third party other than Otuvy.

1.35 “Uptime” shall mean the amount of time that the specific Functional Specifications of the base package of the Otuvy QM Subscription Services purchased by Client (as set forth in Exhibit B to the Agreement) are available in any given month excluding Planned Downtime.

1.36 "Use", “Uses”, “Using”, or “Used” shall mean, subject in all cases to the restrictions set forth by Otuvy from time to time in its sole discretion, the access, use, and/or utilization of the Software solely in connection with those parts of the Otuvy QM Subscription Services provided to Client and/or its Users by Otuvy, and being paid for by Client for its business operations in the normal course of Client’s business, whether private or white labeled or not, all in accordance with the use for which the Software was designed, all as determined by Otuvy from time to time in its sole discretion.

1.37 “Users” shall mean certain individuals who have access to Client Data, the Otuvy QM Subscription Services and/or other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, and/or who are appointed by Client, directly or indirectly, to Use the Otuvy QM Subscription Services, to Use the Otuvy QM Subscription Services on behalf of Client, and/or to use the other services and/or products provided by Otuvy or its designees, directly or indirectly, to Client and/or its Users, and includes Service Provider Users and Contact Users.

1.38 “User License Fee” shall mean the ongoing fee due and payable by Client to Otuvy for the maximum number of Service Provider User Licenses determined by Client. 

1.39  “White Label Branding” shall mean the services that may be provided by Otuvy or its designees, directly or indirectly, that relate to replacing certain “Otuvy QM” and/or “Otuvy” identity within the Otuvy QM Subscription Services with Client’s identity on both the mobile application and web application of the Otuvy QM Subscription Services for a recurring fee paid by Client to Otuvy as set forth in the Agreement or Otuvy QM Order Form specifically, all as determined by Otuvy from time to time in its sole discretion.  Client must be paying User License Fees for a minimum of an annual billing period in order to purchase White Label Branding from Otuvy. 

1.40 “White Label Branding Fee” shall mean the fee due and payable by Client to Otuvy for White Label Branding purchased by Client. 

Version: August 9, 2023

Exhibit B

Functional Specifications

 

 

            This Exhibit B is an exhibit to the OTUVY QM SUBSCRIPTION AGREEMENT between Otuvy, Inc. (hereinafter “Otuvy”) and the Organization placed on the Otuvy QM Order Form attached hereto and/or entered into between the parties (hereinafter “Client”) and all exhibits and addendums thereto including, but not limited to, the Otuvy QM Order Form, as determined by Otuvy (hereinafter the “Agreement”), and is subject to the terms and conditions of said Agreement including the definitions therein.

 

The functional specifications for the performance of the Otuvy QM Subscription Services are as follows, or, in other words, the Otuvy QM Subscription Services perform the following functions depending on the base package purchased:

 

QC Basic:

  • Stores certain information about Users and their business, if any.

  • Allows a Service Provider User to perform inspections and/or measuring of certain user-definable criteria.

  • Generates certain reports relating to specific information that may be viewable and/or printable by Third Party Software.

  • Allows a Service Provider User to upload certain files to the Otuvy QM Subscription Services. 

 

Business Pro & Enterprise Plus (all of the functions of the QC Basic, plus):

  • Facilitates communication between two or more parties.

  • Upon choosing certain notification preferences and/or entering certain information in specific fields, sends an email that may notify that party of certain changes to a communication or a new communication that has been posted.

  • Allows a User to reply to, file and/or search for a communication.

 

 

Version: August 9, 2023

OtuvyQMOrderForm-SubscriptionAgreement_2022-08-09_Final

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