GENERAL. The following terms and conditions shall be applicable to the purchase of Open House Every Day® services. Any acceptance contained herein is made expressly conditioned upon the Customer's assent to the terms and conditions set forth herein. Any conduct by Customer which recognizes the existence of a contract between Open House Every Day and Customer including, without limitation, use of the listing inventory data, shall be conclusive evidence of Customer's assent to the terms and conditions set forth herein.
PAYMENT TERMS. Monthly via credit card. Monthly credit card transactions will be charged automatically on same day each month. Open House Every Day reserves the right to discontinue Customer’s access to Open House Every Day service three (3) business days after the monthly billing date for delinquent accounts. A Finance Charge of 1 ½% per month (18% annual percentage rate) will be imposed for those accounts that are delinquent. Production fees (if any) and first month's service fees are due upon start of agreement.
CANCELLATION. Customer may cancel at any time. Refunds due to service cancellation are not given for partial months. Cancellation notice must be received in writing at least two (2) business days before the monthly billing date.
SERVICES WARRANTY. Open House Every Day does not warrant uninterrupted operation of the Open House Every Day service and specifically disclaims any other warranties, either express or implied, including the warranties of merchantability and fitness for a particular purpose. Open House Every Day will strive to correct any issue with the operation of the Open House Every Day service but will not be held liable for lost opportunities or misrepresentations due to any system failure. Customer's sole remedy under this provision shall be the return of the purchase price for the period of time when the Open House Every Day service was not functional. The foregoing remedy is Customer's sole and exclusive remedy for breach of this provision. No other remedy will be allowed, whether in contract, tort, negligence, strict liability or otherwise.
LIMITATION ON LIABILITY. In no event shall Open House Every Day be liable or responsible to Customer or any other person for any special, indirect or consequential losses or damages, whether based on contract, tort, strict liability or other theory of law, even if Open House Every Day shall have been advised of the possibility of any such loss or damages, all such damages and claims being specifically disclaimed. Open House Every Day shall not be liable for any loss or damage caused by (1) malfunction or errors in the phone system\ or internet or (2) interruption in the operation of the services. In no event shall Open House Every Day’s liability exceed the purchase price.
OWNERSHIP OF DATA: All data and information collected or compiled through the use or operation of the Services (collectively, “Confidential Information”) shall be the sole and exclusive property of Open House Every Day. Customer understands that certain Confidential Information may identify individuals (“Individually Identifiable Information”) and may be subject to protection by state and federal laws and regulations including, but not limited to, the Privacy Rule of The Health Insurance Portability and Accountability Act (HIPAA) of 1996, (45 C.F.R. Parts 160-164) and Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § et. seq.). To the extent Customer is given access to Confidential Information, Customer agrees to keep such Confidential Information confidential and shall not disclose Confidential Information to any person, entity or otherwise, or use the same in any other way without the prior written approval of Open House Every Day. If Customer becomes aware of any use or disclosure of Confidential Information by Customer, its employees, agents or subcontractors which is not provided for in your Open House Every Day Service Agreement, Customer shall report such violation to Open House Every Day immediately. Customer shall implement and use and cause its subcontractors to implement and use, appropriate administrative, technical and physical safeguards to prevent the unauthorized use or disclosure of Confidential Information. Customer shall also use and cause its subcontractors to use appropriate safeguards to prevent unauthorized parties from accessing, using, disclosing or tampering with Confidential Information maintained by Customer and transmitted electronically to or from Open House Every Day. Customer agrees to make available to Open House Every Day its internal policies and procedures relating to the use and disclosure of Confidential Information received from, or created or received by Customer on behalf of Open House Every Day. Customer agrees to mitigate, to the extent practicable, any harmful effect that is known to Customer of a use or disclosure of Confidential Information by Customer, its employees, agents or subcontractors in violation of the requirements of the Agreement. Customer must maintain a log of all disclosures of Confidential Information, including but not limited to, disclosures needed to carry out Customer’s legal responsibilities, and for proper management, internal auditing and administration. Within ten (10) days of Open House Every Day’s written request, Customer shall provide a copy of the log to Open House Every Day. Upon termination of the Agreement, or at any time at the request of Open House Every Day, Customer shall use its due diligence and its best effort to (a) promptly deliver to Open House Every Day all of the Confidential Information received from Open House Every Day (excluding any analyses, compilations, forecasts, studies or other such materials prepared by Customer for his own internal use from the Confidential Information) and shall retain no copies, extracts or other reproductions thereof, or (b) destroy such Confidential Information and affirm that such Confidential Information has been destroyed.
DISCLAIMER. Open House Every Day will only transfer calls to U.S. local and toll -free numbers. Customer shall be solely responsible for the content of all Services. Customer shall be solely responsible for compliance with all laws relating to the use of the Services or use of Confidential Information, including federal and state “no-call” laws.
INDEMNITY. Customer agrees to indemnify and hold harmless Open House Every Day and its members, directors, officers, employees, agents, affiliates and their personal representatives, heirs, successors and assigns, and each of them, from and against any and all claims, liabilities, loses, demands, penalties, fines, suits, judgments, settlements, damages, costs and expenses (including without limitation reasonable attorneys’ fees) incurred by Open House Every Day or any such person or entity, arising out of or related to Customer’s use of the Services or the Confidential Information, including but not limited to the content of material and the failure, breach or default by Customer of any of the representations, warranties, covenants or other agreement of Customer contained in the Open House Every Day Service Agreement.
CANCELLATION AND DELAYS. Open House Every Day shall have the absolute right to cancel the Open House Every Day Service Agreement upon breach thereof by the Customer, failure by the Customer to make payment required by the Open House Every Day Service Agreement, or the insolvency or bankruptcy of the Customer. Open House Every Day shall not be liable for damages or delays in performance due to circumstances beyond its reasonable control, including without limitation the generality of the foregoing, any priority system established by any agency of the United States Government, fires, floods, storms, and other acts of God, accidents, strikes, terrorism, insurrections, war, shortage of materials, technical difficulties or incompatibilities, lack of transportation and failure of performance of subcontractors and/or suppliers for similar reasons. Failure of Open House Every Day to perform for these reasons aforesaid shall not be grounds for Customer's cancellation of its order but the term shall be extended accordingly. Open House Every Day may in its sole discretion terminate the Open House Every Day Service Agreement in the event that technical difficulties prevent the performance of Services substantially in the manner provided herein.
TAXES. All applicable federal, state or local sales, use or exercise taxes are the responsibility of the Customer and shall be in addition to the price or prices stated in the Open House Every Day Service Agreement unless otherwise specifically stated. Open House Every Day shall have the right to invoice separately any such tax as may be imposed at a later time. Applicable tax exemption certificates must accompany any order to which the same applies.
ENTIRE AGREEMENT. Your Open House Every Day Service Agreement constitutes the entire agreement between the parties concerning the subject matter of the Agreement. The Agreement supersedes any contemporaneous or prior proposal, representation, agreement, or understanding between the parties. The Agreement may not be amended except in writing by both parties.
NOTICE; CLAIMS. Customer shall notify Open House Every Day of any problem or defect with the Services no later than ten (10) days after the date the problem should have been reasonably discovered. Failure to provide notice as provided herein shall constitute a waiver by Customer of any claims with respect to such problem or defect. All claims with respect to the Services, whether based on contract, breach of warranty, tort (including, but not limited to, negligence and strict liability) or otherwise must be made within twelve (12) months of the performance of such Services.
MISCELLANEOUS. The Open House Every Day Service Agreement may not be assigned or transferred (by operation of law or otherwise) by Customer without prior written consent of Open House Every Day. Open House Every Day's failure to insist, in one or more instances, upon the performance of any term or terms of the Agreement shall not be construed as a waiver or relinquishment of its right to such performance or the future performance of such term or terms and Customer's obligation with respect thereto shall continue in full force and effect. Any notice or other communication required or permitted hereunder shall be given in writing by registered or certified mail, postage prepaid, to the other party thereto at its respective business address. Any such notice shall be deemed to have been received on the third business day following such mailing. Either party thereto may change its address for notice purposes by written notice to the other party. The Agreement may be amended at any time by mutual agreement of the parties hereto by an endorsement to the Agreement signed by each of them. The invalidity, in whole or in part, of any provision of the Agreement shall not affect the validity or enforceability of any other of its provisions. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky.