Observa Technologies
Terms of Service
This TERMS OF SERVICE (the “Agreement”) is between Observa Technologies, a Limited Liability Company headquartered in Utah (“Company”) and you as a customer (“Customer”).
This Agreement is effective for all Order Forms executed on or after August 6th, 2024.
By executing an Order Form, clicking a box referencing this Agreement, or accessing or using the systems, services, or other offerings installed or provided by Observa Technologies (“Services”), Customer acknowledges and agrees that Customer has read, understood, and agrees to the terms of this Agreement. This Agreement applies to Customer and all Customer’s Users who access the Services under Customer’s account.
CONSULTANT STATUS: Customer acknowledges and agrees that Company is engaged by Customer solely in the capacity of a consultant for the purpose of providing the Services. Furthermore, Customer expressly understands and agrees that:
Company is not acting as a licensed contractor, subcontractor, or agent in any capacity.
Company does not undertake to directly perform any construction, installation, or physical labor related to the Services.
Company does not hold itself out as having the capacity to perform construction work or any other work typically performed by contractors or subcontractors possessing the required & appropriate licenses for Customer’s jurisdiction.
The relationship between Customer and Company is that of a client and independent consultant.
LICENSED SUBCONTRACTOR DELEGATION: To perform the Services requested in the Order Form, Customer grants Company explicit permission to hire & engage licensed subcontractors as necessary. In this regard, Customer expressly understands & agrees that:
Customer authorizes Company, in Company’s capacity as a consultant, to identify & engage third-party contractors to perform specific tasks that require specialized skills or licenses in order to provide the Services.
The selection and engagement of these licensed contractors will be solely at Company’s discretion, provided that such contractors possess the necessary licenses, qualifications, and expertise to perform the required tasks.
Company will oversee the coordination of work performed by these contractors, but will NOT at any time assume the role of contractor or subcontractor itself.
Any agreements or contracts between Company and any licensed contractors Company may hire & engage are independent of Customer’s agreement with company.
Customer will not have any direct contractual relationship with the contractors engaged by Company, and any concerns or issues related to the contractor’s performance or presentation should be communicated to Company for resolution.
Upon request, Customer may obtain copies of license or insurance information of any subcontractors hired by Company, and Company agrees to provide such information within a reasonable timeframe.
INDIRECT LOSS OR DAMAGE: Customer acknowledges and agrees that Company shall not be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or in connection with the Services provided.
Exclusions include, but are not limited to:
Loss of profits, revenue, or anticipated savings;
Loss of business opportunity, goodwill, or reputation;
Loss or corruption of data or software;
Downtime or business interruption;
Any other financial loss or damage not arising directly and naturally from Company's breach of its obligations under this agreement.
The above-stated exclusions apply regardless of whether such damages were foreseeable or whether Company was advised of the possibility of such damages.
Furthermore, Customer acknowledges that:
Company’s liability is limited to direct damages only and shall not exceed the total amount paid by Customer to Company for the Services provided under this agreement during the twelve (12) months immediately preceding the event giving rise to the liability.
Company does not assume any responsibility or liability for the actions, errors, or omissions of third-party contractors engaged by Company as permitted under Section 2 of this agreement.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to any indirect loss or damage as specified above.
STORAGE OF ASSETS: Customer assumes full responsibility for the storage and safekeeping of all materials, equipment, technology, and other components supplied by Company, OEMs, or other parties in connection with the performance of the Services (collectively referred to as “Assets”).
Customer agrees to ensure that the Assets are stored in a secure and suitable environment that protects them from damage, theft, and deterioration. Customer is responsible for maintaining the Assets in good condition and ensuring that they are used in accordance with any applicable guidelines or instructions provided by Company or the OEMs.
Customer shall be liable for any loss, damage, or deterioration of the Assets occurring while in Customer’s possession, whether due to negligence, misuse, or other causes. Company shall not be responsible for any costs or damages associated with the loss or damage of the Assets during the storage period.
Customer is encouraged to obtain appropriate insurance coverage for the Assets to cover potential loss, damage, or theft. Company does not provide insurance for the Assets and is not liable for any costs associated with insurance or claims made under any insurance policy.
Customer agrees to promptly notify Company (and, where applicable, OEMS and/or other third parties) of any issues related to the condition or safety of the Assets. In the event of loss or damage, Customer shall provide Company with detailed information regarding the incident and cooperate with Company in resolving any related matters.
Upon completion of the Services or termination of the Agreement, Customer agrees to return any unused Assets supplied by Company or other parties in good condition, normal wear and tear excepted. Any costs associated with the return of the Assets shall be borne by Customer.
ERRORS AND OMISSIONS: Customer acknowledges and agrees that Company shall not be held liable for any errors or omissions in designs, materials, or equipment specified or supplied by others. Specifically, Customer understands and agrees that:
Company is not responsible for any errors, inaccuracies, or omissions in the designs, plans, or specifications provided by third parties, including, but not limited to, architects, engineers, or other consultants engaged by Customer.
Company shall not be liable for any deficiencies, inadequacies, or failures in materials or equipment specified, provided, or supplied by third parties. This includes, but is not limited to, any defects in materials or equipment that may affect the performance or outcome of the Services provided by Company.
Customer is responsible for ensuring the accuracy, completeness, and suitability of all designs, materials, and equipment provided by third parties for the intended purposes and for verifying that they meet all relevant standards and requirements.
Company’s role is limited to providing advisory and consulting services, and Customer understands that any reliance on designs, materials, or equipment provided by third parties is at Customer’s own risk.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to any errors, omissions, or inadequacies in designs, materials, or equipment provided by third parties.
Company will make reasonable efforts to identify and communicate any apparent errors or deficiencies in third-party designs, materials, or equipment during the course of its Services, but Company does not assume any liability or responsibility for identifying or correcting such issues.
ADJUSTMENT FOR ALTERATIONS: Any change in or alteration to the executed Order Form may result in an adjustment to the quotation amount. This includes (but is not limited to) changes to SKUs provided, SKU quantities, delivery address, etc.
FORCE MAJEURE: No party shall be liable for delays, nor defaults due to Acts of God or the public enemy, riots, strikes, fires, explosions, accidents, governmental actions of any kind or any other causes of a similar character beyond its control and without its fault or negligence.
SYSTEM MALFUNCTIONS LIABILITY: Customer acknowledges and agrees that Company is providing Services to install and/or maintain products & services provided by third parties, including (but not limited to) Original Equipment Manufacturers (“OEM”). As such, Company shall not be held liable for any system malfunctions arising from the following:
OEM Defaults or Defects: Company shall not be liable for any system malfunctions, failures, or issues resulting from defaults or defects in equipment, software, or other components provided by OEMs. This includes any faults inherent in the design, manufacturing, or functionality of such components that were not caused by Company.
Customer Misuse: Company shall not be liable for any system malfunctions or damages resulting from misuse, abuse, or improper use of the system or equipment by Customer. Misuse includes, but is not limited to, operating the system or equipment in a manner not intended by the OEM or failing to follow recommended usage guidelines and maintenance instructions.
Third-Party Influences: Company shall not be responsible for any system malfunctions caused by issues related to third-party software, hardware, or services that are not directly provided or controlled by Company.
External Factors: Company shall not be liable for any system malfunctions arising from external factors beyond Company’s control, including but not limited to power failures, weather-related events, natural disasters, or other events that may affect the operation of the system.
Indemnity: Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to system malfunctions resulting from OEM defaults, defects, or customer misuse.
COMPLIANCE ASSUMPTION: Customer acknowledges and agrees that Company is providing Services based on the assumption that all plans, specifications, and related documentation provided to Company by Customer or third parties meet all applicable codes, standards, regulations, and laws. Specifically:
Company assumes that all plans, specifications, and documentation provided by Customer or third parties comply with relevant local, state, and federal codes, standards, regulations, and laws applicable to the Services being provided.
Company is not responsible for independently verifying that the plans, specifications, or documentation comply with applicable codes, standards, regulations, or laws. Customer is solely responsible for ensuring that all such documents meet these requirements.
Company shall not be liable for any non-compliance issues, penalties, or damages arising from the failure of plans, specifications, or documentation to meet applicable codes, standards, regulations, or laws. The responsibility for compliance rests entirely with Customer.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to non-compliance with applicable codes, standards, regulations, or laws that result from plans, specifications, or documentation provided by Customer or third parties.
Company makes no warranty or representation regarding the compliance of the plans, specifications, or documentation with applicable codes, standards, regulations, or laws. All such assurances must be obtained from relevant authorities or qualified professionals.
Customer represents and warrants that its collection, use and/or transmission of video recordings, images, live feeds, or any other product or service provided by Company does not and will not infringe, misappropriate or violate a third party's rights of privacy or result in the violation of applicable law.
CONTINUOUS WORK ASSUMPTION: Tenders are based on work being performed in a continuous uninterrupted fashion. It is reasonable to expect that disruption to the mutually agreed upon schedule may result in changes to price.
WARRANTY DISCLAIMER: The Customer acknowledges and agrees that:
Equipment and materials supplied by Company are warranted solely to the extent that the manufacturer provides a warranty for such equipment and materials. Company does not provide any additional warranties, express or implied, beyond those offered by the manufacturer.
Customer’s recourse for any defects, issues, or failures in equipment or materials is limited to the warranty provided by the manufacturer. Company will assist Customer in obtaining manufacturer warranty service but does not assume any responsibility for the performance of the manufacturer’s warranty.
Company shall not be liable for any damages, losses, or costs arising from equipment or materials that fail to perform as expected, including any costs associated with repair or replacement beyond the manufacturer’s warranty.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to any issues with equipment or materials supplied by Company.
IMPORT DUTIES & TAXES: The fees set forth in the Order Form are exclusive of import duties, taxes, and fees, where applicable.
EXCLUSION OF BASE BUILDING CONNECTION FEES: Base building connection fees are not included.
PAYMENT METHODS: Customer may make payments using the following methods: ACH, Wire, OR Credit Card.
CREDIT CARD PROCESSING FEE: For payments made via credit card, a processing fee of 3% will be applied to the total amount due. This fee covers the costs associated with credit card transactions and will be added to the invoice total.
LATE PAYMENTS: Payments are due on the date specified on Customer’s invoice. Payments not received by the due date are subject to a late fee of 1.5% per month on the outstanding balance.
Customer acknowledges that if payments are not received in full within 180 days of the invoice date, Company may take legal action to collect the unpaid balance plus late fees, including but not limited to collections, liens, or other forms of recourse.
If Customer is unable to complete payments in full before the agreed-upon deadline, Company may, at its sole discretion, agree to a payment plan in which Customer makes payment arrangements on an alternative schedule. Such a payment plan must be agreed to in writing by authorized representatives of both Customer and Company.
OBSERVA TECHNOLOGIES PAYMENT TERMS: Unless specified otherwise on the executed Order Form, Customer agrees to pay 100% of the Total Cost on the Order Form upfront.
FINANCING PARTNER PAYMENT TERMS: If Customer is paying for Services with third party financing, Customer agrees to and acknowledges the following:
Invoices for equipment and licenses are due and payable to the agreed Financing Partner. Customer agrees to make all payments in accordance with the terms specified by the Financing Partner.
Customer agrees to adhere to and be bound by the Financing Partner’s Terms and Conditions. These terms include, but are not limited to, payment schedules, late fees, and any other conditions related to the financing and payment of equipment and licenses.
Customer is responsible for ensuring that payments are made in a timely manner as per the Financing Partner’s instructions. Any delays or issues with payment are subject to the Financing Partner’s policies.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to any issues with payment to the Financing Partner or disputes concerning the Financing Partner’s Terms and Conditions.
Company is not responsible for any disputes or issues arising between Customer and the Financing Partner regarding payment terms, conditions, or performance. All such matters are to be resolved directly with the Financing Partner.
PROJECT COMMENCEMENT: Performance of the Services shall not commence until Company has received payments according to the payment terms specified in sections 16 or 17 of this Agreement. Furthermore, Customer agrees to & acknowledges the following:
If initial payments are not received by Company within the specified timeframe, the commencement of the installation may be delayed. Company is not liable for any delays or additional costs incurred as a result of such delays.
Company reserves the right to withhold the start of the installation until all required payments are received in accordance with the payment terms specified in the agreement.
Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages, including reasonable attorney’s fees, arising out of or related to delays in project commencement due to the failure to make required initial payments.
If Customer fails to make the required initial payments within 60 days of executing the Order Form, Company may cancel the order form and terminate the agreement. In such cases, Customer will be notified of the cancellation, and any obligations under the agreement will be deemed null and void.
QUOTATION VALIDITY PERIOD: Any pricing quotes or quotations provided by Company on an authorized Order Form are valid for a period of exactly thirty (30) calendar days from the Date Prepared (as specified on the Order Form). Company may (but is not obligated to) extend this quotation validity period at its own discretion.
LIMITATION OF LIABILITY: Except for liability arising from gross negligence or willful misconduct, Company’s total liability for any claim arising out of or related to this Agreement shall not exceed the total amount paid by Customer for the Services giving rise to the claim.
GOVERNING LAW & JURISDICTION: This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without regard to its conflict of laws principles. Any disputes arising out of or related to this Agreement shall be resolved in the state or federal courts located in Salt Lake County, Utah.
DISPUTE RESOLUTION: Any disputes arising out of or related to this Agreement shall first be attempted to be resolved through informal negotiations between the parties. If a dispute cannot be resolved through informal negotiations, the parties agree to submit the dispute to mediation. If mediation is unsuccessful, the dispute shall be resolved through binding arbitration conducted in Salt Lake County, Utah, in accordance with the rules of the American Arbitration Association.
JOINT AND SEVERAL LIABILITY: If the Customer consists of more than one person, entity, or organization, the obligations and responsibilities under this Agreement shall be joint and several. This means that each person, entity, or organization comprising the Customer shall be individually responsible for fulfilling all terms and conditions of this Agreement.
Company may pursue any remedy available under this Agreement against any or all of the persons, entities, or organizations constituting the Customer. The failure of any one or more of these parties to perform their obligations does not relieve the other parties from their respective obligations.
Each person, entity, or organization comprising the Customer agrees to indemnify and hold harmless Company from any claims, demands, or damages arising out of or related to the actions or omissions of any other person, entity, or organization that is part of the Customer.
ENTIRE AGREEMENT & AMENDMENTS: This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral. No modification or amendment of this Agreement shall be valid or binding unless made in writing and signed by authorized representatives of both parties.
ASSIGNMENT: In the event that Observa Technologies ceases operations or is otherwise unable to fulfill its obligations under any executed Order Form, any & all remaining fees owed by Customer to Observa Technologies shall be assigned to the OEM Vendor whose products were purchased. Customer acknowledges and agrees that this OEM Vendor will assume the right to collect any remaining payments directly from Customer in accordance with the terms of this agreement. This assignment does not alter the scope, duration, or pricing of the license granted to Customer as originally agreed upon between Observa and the OEM Vendor. OEM Vendor will be bound by the same obligations and terms set forth in this agreement regarding software license rights and services.