Welcome to OpenVia. OpenVia is a property access platform offered by Front Porch Ventures, Inc. doing business as OpenVia (“OpenVia,” “we,” “our,” or “us”), which allows you to grant temporary property access to third parties (the “Product”). These Terms and Conditions (these “Terms”) govern the use of the Product by your owned and operated property(s) that you have signed up for the Product service (your property is referred to herein as “you,” “your,” or “Property”).
Acceptance of Terms.
By signing up for and/or using the product, you, on behalf of yourself and your property, accept and agree to these terms, which constitute a binding contract between you and OpenVia. you also represent and warrant that you have full right, power, and authority to sign up your property for the product, to access and use the product on behalf of your property, to agree to these terms on behalf of your property and that all actions necessary to authorize the acceptance of and agreement to these terms have been taken by all authorized representatives of your property. If you or your property do not agree to any of these terms, or if any of the foregoing representations and warranties are not wholly true and accurate, then do not sign up for or use the product.
These terms require that you, your property, and any representative of your property resolve any and all disputes with OpenVia arising from or related to the product and/or these terms by arbitration or in small claims court, rather than in court by a jury trial. These terms also require any such disputes to be resolved on an individual basis, not by a class action. Please see Section 15 for more information on arbitration.
We strive to always offer the best possible Product services content and experience. As a result, we may, in our sole discretion, at any time and for any reason or no reason, temporarily or permanently, change, update, suspend, discontinue, or terminate all or part of these Terms or any Account, Portal, your Billing Cycle, Property Fee (all defined herein), the content, functionality, design, materials, availability, advertisements, products, pricing, technical requirements or any and all other elements of the Product, in part or as a whole, now existing or hereafter devised (collectively, “Changes”). We will provide You with reasonable notice of any such Changes by the means of notice provided for in Section 12 of these Terms. Unless otherwise stated in these Terms, all Changes will be effective on a date set forth in our sole discretion.
Creating an Account.
We will create a profile for your property on our system and provide you with a username and password to access your property’s dashboard (the “Account”). Upon receiving this information, you agree to review it for accuracy and notify our team within 5 business days (via email) if any property details change. Details may include access points, property name, property address(s), point of contact email address, and similar information.
Devices.
Once your Account setup is finalized and verified by us, we will provide you, one or more retrofit access devices, and required accessories (collectively, a “Device”) to the Property. Devices will be sent or installed only upon our verification and acceptance of your account information, and are provided at our sole discretion. Devices are only made available to US Properties.
1. You will be responsible for promptly installing your Device(s). Our Property Service team is happy to answer any questions or provide you with help or instructions regarding the installation of your Device, available during normal business hours. You agree to perform installation of the Device(s) within 15 business days of receipt, or if being arranged by OpenVia staff, the installation is to be scheduled within 15 business days.
2. Once your Device is activated and installed, you will be able to utilize the Product to allow third-party property access to your Property. All Devices will need to be activated and properly installed in order to you to use the Product service. Devices provided to each Property from OpenVia will be provisioned so that only tenants that you invite, their guests, and companies utilizing the Company’s API can access your property through our product. You must not use your Provided Device for any other purpose other than as set forth in these Terms.
3.You will need at least one (1) Device per Property installed on the property. You will be responsible for ensuring that the Device is properly connected and has sufficient internet connection to run the service. Additional Provided Devices may be available upon your request, at OpenVia’ sole discretion. We further reserve the right to limit the number of Provided Devices per Property.
4. All Provided Devices are exclusively owned, managed, and maintained by OpenVia. Any and all ownership rights in and to the Provided Devices are specifically reserved by OpenVia. You will not own or acquire any right, title, or interest in any Provided Devices sent to you pursuant to this Section 3.5. You are solely responsible for maintaining the security of your Provided Device and will ensure that it is used only in accordance with these Terms. If you have any difficulties with the installation of your Provided Device, or if you suspect that there is a defect with your Provided Device, please contact Property Service. If your Provided Device is lost, stolen or damaged, you may contact Property Service for a replacement device. Replacement device requests will be fulfilled at our sole discretion and may be subject to a penalty fee of $199.00 (the “Full Retail Price”) per Provided Device.
Upon termination or cancelation, you must promptly return all Provided Device(s) back to us at your cost, if requested. All Provided Devices must be returned in proper working order. If any Provided Device is not in proper working order upon our receipt (as determined by OpenVia in its sole discretion), you fail to timely return your Provided Device after termination or cancelation of the Agreement, or the [the provided device does not meet the Minimum Connection Requirement ], then you will be charged a penalty fee in the amount of the Full Retail Price per Provided Device (the “Device Penalty Fee”). This Device Penalty Fee is also payable pursuant to other applicable terms or conditions as set forth in these Terms, including without limitation, in the event your Account has been deemed inactive, in the event you have not begun utilizing the Product in a timely manner after the creation of your Account, or upon replacement of any Provided Device
Usage Restrictions.
It is important that we maintain the integrity of the Product and all Devices so that all users can enjoy the Product. Therefore, in addition to complying with all other provisions and of these Terms, you agree that you will not use the Product, the Portal or any part of your Account that in any way: Violates these Terms; Is tortious, unlawful, harmful, pornographic, obscene, threatening, abusive, harassing, defamatory, libelous, indecent, vulgar, or otherwise offensive, as determined by us in our discretion; Harasses, degrades, intimidates, discriminates, or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability, as determined by us in our discretion; Is likely to cause confusion, mistake, or deception that you, your Property, is in any way affiliated, connected, or associated with, or sponsored, endorsed, or approved by, us or any other person or entity, without our or their written permission; Includes personal or identifying information about another person without that person’s express consent; Is false, deceptive, misleading, deceitful, mis-informative, or otherwise constitutes unfair competition, deceptive trade practices, or similar unlawful activity; Infringes on or violates the rights of any third party, including but not limited to, copyright, trademark, patent, trade secret, other intellectual property rights, or rights of privacy or publicity; Contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Product or any computer software, hardware, equipment, or devices related to the Product; or Violates any applicable civil or criminal laws, rules, or regulations, promotes any illegal activity or may create any criminal or civil liability on behalf of us.
General Restrictions. With respect to the Product, unless otherwise agreed in writing between you and OpenVia, you will not engage in any of the following: (a) reverse engineering, disassembly, or de-compiling any portion of the Product service, or its software or technology; (b) re-distribution, re-exhibition, re-licensing, encumbrance, or the transfer of any rights in and to any portion of the Product service; (c) private labeling or use in connection with any third-party trademarks, brand names, or similar identifying material in any manner that is likely to cause confusion, mistake, or deception as to an affiliation, connection, or association with OpenVia or the owner/controller of content as to the origin, sponsorship, or approval thereof; (d) commercial use of any video content, including in connection with advertisements or promotions for any products or services of yours or any third party; or (e) use of the Product service in any manner that is (i) in violation of any applicable laws, rules, or regulations, (ii) false, deceptive, misleading, deceitful, fraudulent, defamatory, pornographic, obscene, threatening, abusive, harassing, defamatory, intimidating, or hateful toward an individual or group, (iii) reasonably likely to be disparaging of or otherwise harmful to the reputation or commercial interests of OpenVia or any third party, (iv) in violation of a person’s right of privacy or publicity, (v) infringing upon or in violation of the rights of any third party; or (vi) in promotion of illegal activity.
Property Use and Password Security.
Only the Property that signs up for the Account may use the Product. You may only use your Account for your Property’s own use. A Property may not share its password or otherwise allow any other unaffiliated person, entity, or Property to use or access the Property’s Account. If we suspect or determine that you are sharing your password with other third parties or properties who are unaffiliated with your Account, OpenVia may suspend or terminate your services, in its sole discretion. If you suspect or become aware that any other person or entity has accessed your Account, or obtained your password, you must notify us immediately. Each Property is solely responsible for maintaining the security of its password and assumes all liability arising from its and any third-party use of its Account and password and any other third-party activity relating to your Account. If you fail to create or maintain the security of your Account, you will not be entitled to any refund, discount, or credit.
Termination of Your Account by OpenVia.
A suspension or termination of your Account will suspend or terminate access to the Product service. We may suspend or terminate your Account immediately, for any reason, including without limitation, if we, in our discretion, determine or suspect that you have violated these Terms (including our Privacy Policy and Copyright Policy), have engaged in any other misconduct, or for any other technical or business reason in our sole discretion. Furthermore, we may also suspend or terminate your Account as a result of multiple late payments or upon multiple failures to charge the Payment Source on file in your Account, and/or your inability to provide a new Payment Source after receipt of our written notice to do so. If we suspend or terminate your Account, you must immediately stop using or accessing (or attempting to use or access) that or any other Account or the Product services; and you agree to not, or will attempt to circumvent, avoid, or bypass such suspension or termination, nor otherwise restore or attempt to restore your use or access of the Account. Any suspension or termination of your Account is in addition to any rights and remedies available to OpenVia, under these Terms or under applicable law. Upon termination of your Account, all rights granted hereunder will terminate and you will cease all uses of the Service and will immediately return to the Product all Provided Devices, files, documents, platforms or other property of any media or nature. If you fail to return any Provided Device(s) within thirty (30) days of cancelation, you will be subject to the Device Penalty.
Communication from OpenVia.
You agree that, unless otherwise stated in these Terms, we may send all notices and other communication related to your Account (whether under these Terms or otherwise) to you electronically by: (a) E-mail to the then-current Email address associated with your Account; or (b) posting them within your Portal or any other account page assigned to you as part of your Account. Such electronic notices and communication from us may include notices with respect to your Account, Payment Method, Billing Cycle, new offers, cancellation or termination, changes to these Terms, and other transactional information.
Indemnification.
You agree to indemnify OpenVia, its parents, subsidiaries, affiliates, licensees, licensors, successors, and assigns, and each of its and their respective directors, officers, members, managers, employees, and agents, (collectively the “Released Parties”) from and against any third-party claims, suits, demands, damages, liabilities, judgments, losses, actions or causes of action, expenses, costs, or fees (including reasonable attorney’s fees) (collectively, “Claims”) caused by, arising from, or related to your: (a) use of the Product platform and services; (b) any unauthorized use of the Product platform and services; (c) breach or violation of any provision of these Terms (including our Privacy Policy and Copyright Policy); (d) violation of or infringement on the rights of any third party; or (e) violation of any applicable law, rule, or regulation. We reserve the right to, at our expense, retain separate counsel and assume the exclusive defense and control of any Claims subject to indemnification by you.
Representations and Warranties.
You represent and warrant that: (a) you have full right and authority to agree to these Terms, and perform all obligations and grant all rights under these Term, including the right to install, mount, affix or attach one or more Provided Devices to the Property; (b) the execution, delivery, and performance of these Terms, and the authority of the signatory hereto, have been duly authorized by you; and (c) you are not under any contractual, fiduciary, or other obligation that would prevent you from entering into and fully performing its obligations under these Terms.
Warranty Disclaimer and Limitation of Liability.
THE ACCOUNT, THE PRODUCT, AND ALL CONTENT RELATED THERETO ARE PROVIDED "AS IS," "AS AVAILABLE," WITH ALL FAULTS, AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPLETENESS, AVAILABILITY, SECURITY, AND NON INFRINGEMENT, ALL OF WHICH WARRANTIES ARE DISCLAIMED BY OpenVia. ADDITIONALLY, OpenVia DOES NOT WARRANT AND DISCLAIMS ANY WARRANTY THAT THE USE OF YOUR ACCOUNT OR OF THE PRODUCT WILL BE UNINTERRUPTED, ACCURATE, ERROR- FREE, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, OR OF ANY PARTICULAR OPERATIONAL SPEED, CONTENT, SUBJECT MATTER, OR QUALITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PERSONAL INJURY, LOST PROFITS, OR OTHER DAMAGES, UNDER ANY THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF, OR INABILITY TO USE, THE ACCOUNT OR THE PRODUCT, EVEN IF THE RESPECTIVE RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLIES TO YOU.
Dispute Resolution and Arbitration. Disputes between us will be resolved as follows:
Agreement to Arbitrate. YOU AND OpenVia AGREE THAT ANY DISPUTE, CLAIM (DEFINED HEREIN), OR CONTROVERSY (COLLECTIVELY, “DISPUTE”) BETWEEN YOU AND OpenVia THAT IS RELATED, IN ANY WAY, TO YOUR ACCOUNT, THESE TERMS, (INCLUDING BUT NOT LIMITED TO, THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, ARBITRABILITY, APPLICABILITY, VALIDITY, OR THE SCOPE THEREOF), OR YOUR RELATIONSHIP WITH OpenVia, UNDER ANY LEGAL THEORY, WILL BE RESOLVED EXCLUSIVELY BY INDIVIDUAL (NOT CLASS) MANDATORY AND BINDING ARBITRATION, RATHER THAN IN COURT; EXCEPT THAT, (A) IF YOUR DISPUTE QUALIFIES, YOU MAY BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT; AND (B) YOU OR WE MAY BRING AN INDIVIDUAL ACTION SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF TO ENJOIN ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR THE VIOLATION OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS. THESE ARBITRATION PROVISIONS WILL SURVIVE ANY CANCELLATION OR TERMINATION OF YOUR ACCOUNT AND WILL APPLY REGARDLESS OF WHETHER THE DISPUTE ARISES BEFORE, DURING, OR AFTER THE TERMS OR YOUR ACCOUNT. THE ARBITRATOR CAN AWARD THE SAME DAMAGES, RELIEF, AND OUTCOME AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF), IN ACCORDANCE WITH APPLICABLE LAW. IN ARBITRATION, THERE IS NO JUDGE OR JURY, AND YOU HEREBY WAIVE ANY RIGHT YOU MIGHT OTHERWISE HAVE TO A TRIAL BY JUDGE OR JURY. JUDGMENT ON ANY ARBITRATION AWARD MAY BE ENTERED IN A COURT OF COMPETENT JURISDICTION. COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
Dispute Notice and Attempted Informal Resolution. Prior to initiating arbitration, the party intending to initiate the arbitration must first send the other a written notice of the Dispute (a “Dispute Notice”). The Dispute Notice must include a written statement that states: (a) the name, address, phone number, and email of the party giving the notice; (b) a reasonably detailed description of the nature and factual basis of the Dispute; and (c) the specific relief sought in connection with the Dispute. You must send all Dispute Notices by reliable courier (such as Federal Express or UPS) or certified mail (signature required). We must send any Dispute Notice to you by: (a) reliable courier (such as Federal Express or UPS) or certified mail (signature required) to the most recent billing address associated with your Account; or (b) E- mail to the most recent E-mail address associated with your Account. After you or we receive a Dispute Notice from the other, we both agree to, for a period of 30 days, before initiating any arbitration, use good faith efforts to resolve the Dispute informally through communication. Any settlement offers made during that time may not be disclosed to the arbitrator prior to the arbitrator’s final award, unless mutually agreed on by you and us or otherwise required by the arbitrator. IF THE DISPUTE IS NOT RESOLVED DURING THE 30-DAY PERIOD OF GOOD FAITH EFFORTS TO RESOLVE, EITHER PARTY MAY THEN INITIATE ARBITRATION PROCEEDINGS.
Arbitration Rules. Any arbitration between you and OpenVia will take place before a single arbitrator, under the then in effect Consumer Arbitration Rules (including the Supplementary Procedures for Consumer-Related Disputes) (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms. You and OpenVia agree that the Federal Arbitration Act applies to and governs any arbitration under these Terms. THE AAA RULES, AS WELL AS INSTRUCTIONS ON HOW TO FILE AN ARBITRATION PROCEEDING WITH THE AAA, ARE AVAILABLE AT ADR.ORG, OR YOU MAY CALL THE AAA AT 1-800-778-7879.
Arbitration Location. Unless you and OpenVia agree otherwise, any arbitration hearings will take place in person in Birmingham, Alabama, USA; subject to the AAA Rules that may require or permit certain arbitration hearings by methods other than in-person hearing (such as by telephone or video conference) or to be based solely on documents submitted to the arbitrator.
Arbitration Fees. If you initiate an arbitration proceeding and you are required to pay a filing fee, we will reimburse you for that filing fee, unless your Dispute is for more than $10,000, in which case you will be responsible for the filing fee. Regardless of who initiates the arbitration, we will pay all other arbitration fees, including your share of arbitrator’s compensation, unless otherwise required by AAA Rules or a court order. Even if the arbitrator awards in our favor, and even if we may have a right to an award of attorney’s fees, we will not seek reimbursement of our attorney’s fees or costs from you.
No Class Actions. YOU AND OpenVia AGREE THAT EACH MAY BRING ANY DISPUTE AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and we agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a class or representative proceeding.
Additional or Separate Agreements.
From time to time, we might also offer certain services that require additional or separate agreements. If so, all of these Terms are incorporated into that additional or separate agreement, and your use of the Product in accordance with the additional or separate agreements indicates your acceptance of these Terms. If there is any conflict between these Terms and the terms of any additional or separate agreement entered into between you and us, the terms of that additional or separate agreement will govern.
Force Majeure.
Excluding your payment obligations, no party will be liable for delay or default in the performance of their respective obligations if the delay or default is caused by conditions beyond their reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for thirty (30) days, you may cancel your Account.
Governing Law and Jurisdiction.
These Terms are governed by the laws of the State of Delaware, United States, without regard to conflict of law principles. You and we agree that, if the arbitration or small claims provisions of these Terms are determined to not apply to any Dispute, then that Dispute will be governed by the laws of the State of Alabama, without regard to conflict of law principles, and will be adjudicated exclusively in the State or Federal Courts located in Alabama, to which you consent to personal jurisdiction for the purpose of litigating the Dispute.
No Waiver.
No waiver by either of us of your breach of any term or provision of these Terms will be deemed or construed to be a waiver of any past or future breach of that same or any other term or provision.
Severability.
If any provision of these Terms is found by a court or adjudicator of competent jurisdiction to be invalid or unenforceable, such provision will be invalid or unenforceable only to the extent of such invalidity or unenforceability, without invalidating or affecting the remainder of such provision or the remaining provisions of these Terms.
Term & Cancellation.
Unless otherwise stated in a Purchase Agreement or other document, the Term for this agreement is 1 year, automatically renewing unless cancelled. Cancellation may be performed by providing OpenVia a written cancellation request thirty (30) days or more prior to your desired cancellation date, either by emailing your account representative or info@openvia.co. Cancellations within the first year may be subject to a cancellation fee of 50% of the remaining balance.
Trademark Use.
Trademarks (including but not limited to the Product logo) and Tradenames that are used or displayed on the Product platform are owned by OpenVia (collectively, the “OpenVia Trademarks”). The Product Trademarks may not be copied or used, in whole, partial or modified form, without the prior written permission of OpenVia. In addition, the Product custom graphics, logos, icons, scripts, and page headers are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without the prior written permission of OpenVia. Other trademarks, service marks, registered trademarks, product and service names, and company names or logos that appear on the Product service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by OpenVia. By using the Product service, you grant us the right to use your trademark, logo and trade name for marketing, promotional and public relations purposes, in any and all media now known or hereafter devised, worldwide and in perpetuity.
Assignment.
OpenVia may assign its rights and obligations hereunder to any third party, in its sole discretion. You may not assign your rights and obligations without the prior written consent of OpenVia; provided that the transfer of said rights and obligations by operation of law following the acquisition of all or substantially all of the assets of a party, or all of the equity of a party, will not be treated as an assignment hereunder. These Terms will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.