End-User Subscription Agreement
This Subscription Agreement sets forth the terms and conditions under which myOverhead Corporation, an Ohio corporation (“myOverhead) grants access to the undersigned entity or person (“Subscriber”) to the Subscribed Service(s). All capitalized terms not defined in context have the definition given to them below under the section entitled “Definitions”. THIS AGREEMENT SERVES AS A MASTER AGREEMENT BETWEEN MYOVERHEAD AND SUBSCRIBER, AND GOVERNS ANY ADDITIONAL SERVICES SUBSCRIBER SUBCRIBES TO BY WRITTEN ADDENDA OR OTHERWISE ACCESSES. BY EXECUTING THIS AGREEMENT OR RECEIVING THE INFORMATION AND DATA APPEARING FROM THE SUBSCRIBED SERVICES, SUBSCRIBER ACKNOWLEDGES THAT IT AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT IT WILL TAKE APPROPRIATE ACTION TO ENSURE THAT ITS EMPLOYEES AND AGENTS COMPLY WITH THIS AGREEMENT.
- myOverhead Subscriber Policy. myOverhead may amend the terms and conditions of this Agreement by giving Subscriber electronic notification. myOverhead may make such amendments in its own discretion. In the event Subscriber disagrees with a change in the Subscriber Policy, the Subscriber may terminate this Agreement as provided herein. myOverhead will send Subscriber standard e-mail updates about new myOverhead Services and Subscriptions. All myOverhead Subscribers are required to maintain a public email account to facilitate the transmission of information between myOverhead and Subscriber.
- Confidential Information. Subscriber understands that all Information is the property of either myOverhead or its partners and is subject to (i) restrictions on use and/or disclosure as set forth in this Agreement.
- Limitations on Technical Support. myOverhead will provide telephone technical support during regular business hours for the Services at no additional charge for up to three (3) incidents per month, each not to exceed one hour in duration. If support incidents exceed that time or number in any given month, myOverhead will charge for support at the rate of $90 per hour in 10 minute increments. Support requiring travel to SUBSCRIBERS location will include travel time to and from SUBSCRIBERS location.
- Termination and Effectiveness. Either party may terminate or modify this Agreement as set forth below. This Agreement is effective upon the earlier of (i) execution by both parties or (ii) use of the Service by Subscriber, and shall have a duration of one calendar year from said date. myOverhead shall provide the date of initiation of service to the Subscriber in written form upon acceptance of this agreement. This Agreement may be executed in counterparts and delivered by facsimile.
- NO WARRANTIES. The services provided under this Agreement (the “Service”) are information services provided by myOverhead. The underlying information and data appearing on the Service is provided by Subscriber (the “Information”). myOverhead cannot, and does not, guarantee the accuracy or timeliness of the Service or the Information. There may be delays, omissions, or inaccuracies in the Information or in the Service. Subscriber understands and agrees that myOverhead does not assume any liability to Subscriber or any other person for the truthfulness, accuracy, timeliness, completeness or correct sequencing of the Information or Service, or for any decision made or action taken by Subscriber or any other person in reliance upon such Information or Service, or for any interruption or delay of any Information or the Service for any reason, including without limitation failure to meet a deadline, failure to properly to timely bid a project or perform services required of Subscriber. THE INFORMATION AND THE SERVICE IS PROVIDED “AS IS”. THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE, AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE INFORMATION OR THE SERVICE OR ANY ASPECT OF THE INFORMATION OR THE SERVICE (INCLUDING BUT NOT LIMITED TO ACCESS, INTERRUPTION OR DELAY). THE ACCURACY OF ANY INFORMATION SHOULD BE VERIFIED BEFORE ANY DECISION IS MADE OR ANY ACTION IS TAKEN ON SUCH INFORMATION.
- LIMITATION OF LIABILITY. IN NO EVENT WILL MYOVERHEAD BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED EXPENSES OF OPERATION, COST OF COVER, OR OTHER INDIRECT LOSS OR DAMAGE) OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF MYOVERHEAD HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. MYOVERHEAD SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE INFORMATION OR THE SERVICE. In no event will the maximum aggregate liability of myOverhead for all claims by Subscriber, or any third party claiming through Subscriber, arising out of or relating to this Agreement exceed the amount Subscriber paid myOverhead for the Service in a one year period. In no event will myOverhead be liable for any loss resulting from a cause over which such party does not have direct control, including but not limited to failure or incompatibility of electronic or mechanical equipment, software, or communication lines, telephone or other interconnect problems, unauthorized access, theft, operator errors, severe weather, earthquakes and strikes and other labor problems. SUBSCRIBER AND MYOVERHEAD UNDERSTAND AND AGREE THAT THE TERMS OF THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK AND LIMITATION OF LIABILITY.
- LIMITATIONS ON USE OF SERVICE. Subscriber agrees that the Service is the property of myOverhead and is protected copyrights and trademarks and other proprietary rights. Subscriber represents and warrants that he/she will use the Service only for its own internal use or as otherwise permitted in the myOverhead Subscriber Policy. SUBSCRIBER AGREES NOT TO REPRODUCE, RETRANSMIT, DISSEMINATE, SELL, DISTRIBUTE, PUBLISH, BROADCAST, CIRCULATE OR COMMERCIALLY EXPLOIT THE SERVICE IN ANY MANNER OR FOR ANY PURPOSES (PERSONAL OR BUSINESS) WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF MYOVERHEAD. Subscriber further agrees not to use the Service for any unlawful purpose and agrees to comply with reasonable requests by myOverhead to protect the respective rights of myOverhead in the Service. Subscriber agrees to keep usernames and passwords confidential, and will not provide access to the service to any person or entity outside of those persons or entities listed in this agreement or subsequent addenda. Subscriber agrees that Subscriber is solely responsible for the accuracy and timeliness of the information provided for use by the Service.
- NO ADVICE. Subscriber acknowledges and agrees that neither the Service nor any of the Information is intended to supply advice with respect to any project or activities of Subscriber. Subscriber acknowledges and agrees that the use of the Service and Information, and any decisions made in reliance on the Service and Information are made at Subscriber’s own risk.
- SUBSCRIBER’S INDEMNITY. Subscriber agrees to indemnify and hold myOverhead harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from Subscriber’s violation of this Agreement or any third party’s rights, including but not limited to copyright, proprietary and privacy rights. This indemnification and hold harmless obligation will survive the termination of this Agreement, along with the protections provided to myOverhead under Sections 5, 6, 7, 8 and 10.
- AGREEMENT TO PAY FEES. Subscriber agrees to pay all subscription, activation, deactivation, service and usage fees, if any, which Subscriber is charged or billed by myOverhead for the Service. Subscriber agrees to pay all costs (including attorneys’ fees, if any, incurred by myOverhead in collecting overdue fees from Subscriber). Subscriber agrees to pay all federal, state and local taxes applicable to Subscriber’s use or receipt of the Information and Service. Subscriber acknowledges and agrees that myOverhead, or its agent or representative, is authorized to use the credit card information furnished by Subscriber to myOverhead for purposes of fulfilling Subscriber’s payment obligations under this Agreement. Subscriber further represents and warrants that (i) the credit card or bank information provided to myOverhead hereunder (including card number, expiration date and cardholder’s name, account number, transit number, and account name) is valid in all material respects and lawfully authorized for use, and that (ii) such credit card belongs to Subscriber or has been authorized for use by Subscriber by the valid cardholder or account holder (“Subscriber’s Credit Card or Bank Account”).
11.PAYMENT TERMS. Service fees payable to myOverhead are due in advance, no later than the bill date, are nonrefundable and nontransferable. Payments not received by myOverhead by such bill date will be assessed a late charge of $10.00 and Subscriber may thereafter be charged up to the maximum legal interest on any unpaid balance. If service is deactivated due to non-payment, a $75.00 reconnect fee will be billed to your account. Payments returned or charged back to myOverhead for insufficient funds will result in a service charge of $25.00 to Subscriber. Service shall continue until terminated pursuant to Section 12. Until Subscriber provides notification of cancellation to myOverhead, Subscriber’s subscription account with myOverhead shall continue as an Monthly, Quarterly, Semi-Annually, Annually subscription account and Subscriber shall be obligated to myOverhead for all applicable Monthly, Quarterly, Semi-Annually, Annually subscription fees. Upon cancellation of a Subscription, Subscriber shall be obligated to myOverhead for any remaining unpaid subscription fees. MYOVERHEAD IS AUTHORIZED TO CHARGE ANY UNPAID SUBSCRIPTION FEES TO SUBSCRIBER’S CREDIT CARD OR BANK ACCOUNT PURSUANT TO SECTION 10.
- TERMINATION OR MODIFICATION OF SERVICE. Subscriber understands and agrees to the modification and termination of service terms outlined below:
12.1 Termination or Modification of Service by myOverhead: Notwithstanding any provision in this Agreement to the contrary, myOverhead reserves the right to terminate or modify the Service, in full or in part, in any manner, or cancel this Agreement, in full or in part, at any time. myOverhead reserves the right to terminate or modify Subscriber’s access to the Service or any portion of it in its sole discretion, for cause, including but not limited to discontinuance of myOverhead’ access to any Information or termination by a partner of its Agreement with myOverhead or failure to meet the provisions of this agreement. In the event of a termination or modification of Service to Subscriber by myOverhead, Subscriber will be entitled to receive a pro-rated (based on calendar days) refund of any prepaid subscription fee. Such refund is the sole and exclusive remedy of Subscriber for termination of this Agreement by myOverhead.
12.2 Termination by Subscriber: Service will continue from the initial start date of account through the effective date of termination, as defined below. Subscriber may cancel at any time. Upon cancellation by Subscriber any fees paid are nontransferable and nonrefundable-a credit will be retained for service for a period of 6 months. Pursuant to the requirements of this Section, Subscriber shall provide myOverhead with timely notice of termination.
12.3 Notice of Termination: If notice is received by myOverhead by the close of any U.S. business day prior to the next annual bill date, Service will be canceled as of the next annual bill date.
12.4 Account Payable upon Termination: Upon termination of this Agreement, all unpaid charges shall be due and payable. Subscriber authorizes myOverhead, at myOverhead’ sole discretion, to apply any unpaid account balance to any other active myOverhead account held by Subscriber.
12.5 Default: Subscriber shall be in default under the terms of this Agreement upon the occurrence of any of the following events:
(a) Subscriber fails to timely remit payment for any charge after the date on which it becomes due; or
(b) Subscriber otherwise fails to comply with any of the terms and conditions of this agreement.
12.6 Accounts in Default: Accounts in default may be terminated at the sole discretion of myOverhead. myOverhead will charge a $75.00 reconnect fee to reestablish service on terminated accounts.
- FORCE MAJEURE. myOverhead’s performance under this Agreement shall be excused in the event of interruption and/or delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, earthquake, explosion, power failures, equipment failure, industrial or labor dispute, acts of third-party information providers, third-party software, or communication method interruption.
- LICENSE GRANT. To the extent that myOverhead provides any computer software to Subscriber, such software is licensed to Subscribers as a non-exclusive and non-transferable license to use the software during the term of this Agreement. The Service and the Software are licensed on an “Authorized User” basis. This means that, in no event shall the number of persons authorized to have access to the Service and software exceed the number of subscription fees paid by Subscriber. Further, Subscriber may access the Service from any computer terminal, whether or not such terminal is connected to a public or private computer terminal, but, a subscription fee must be paid for each person who accesses the Service, regardless of whether such access is concurrent or simultaneous with other users. All software or source code is copyrighted by myOverhead and Subscriber may not make any copies of the software or source code. The software and Service may not be retransmitted and the Subscriber cannot act as a service or information bureau for other parties.
- ENTIRE AGREEMENT. This Agreement between Subscriber and myOverhead embodies the entire understanding between the parties and supersedes any and all prior representations and agreements, oral or written. myOverhead may amend the terms and conditions of this Agreement by giving Subscriber electronic notification prior to accessing Service or Information.
- NOTICES. Except as otherwise provided herein, all notices herein shall be provided in writing to myOverhead at 40 Metric Dr., Suite #3, Tallmadge Ohio 44278, and to Subscriber at the address on the first page of this Agreement.
- DEFINITIONS: “Subscription Service” means any service which is purchased from myOverhead on a fee-for-use basis.
- MISCELLANEOUS. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. In any action arising under this Agreement, Subscriber consents to the jurisdiction and venue of the courts of Ohio. The headings of the Sections of this Agreement are for convenience only and shall not be used in interpreting the substance of this Agreement.