The contractual agreement (“Agreement”) between Optalitix and Customer operates to the exclusion of all other terms and conditions contained in, or referred to in, any purchase order, confirmation of order, specification or invoice provided by Customer or implied by law, trade custom, practice, or course of dealing. This Agreement shall apply to all Optalitix customers unless we and you have signed a license agreement, in which case the license agreement will apply.
1 License
1.1 Subject to the terms and conditions of this Agreement, Optalitix grants solely for use by you, a revocable, non-exclusive, non-transferable, non-sub-licensable license for the Term to access and use the Services solely for the purposes determined by Optalitix, at the site identified and solely to access the Services.
1.2 Optalitix shall retain all rights to its Services (including without limitation any materials or code provided as part of the Services), technologies, information, trade secrets, know how, intellectual property, information and data generated by Optalitix or Optalitix’s systems, whether pre-existing, or created after the start of this Agreement, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services), without regard to the basis of such modifications, enhancements or derivations, including all worldwide intellectual property and proprietary rights therein. No implied licenses are granted herein to any of the foregoing. Nothing in this Agreement will be deemed to grant Customer any ownership rights, licence rights, or interests of any kind in Optalitix’s Services, products, or technology or in any of Optalitix’s intellectual property or proprietary rights. All proprietary rights and trade secrets in the Services and any aggregated benchmark data derived from any data, information or material that Customer submits to the Services in the course of using the Services (“Customer Data”) and all copies (in whole or part) shall be the exclusive property of Optalitix (and its licensors), and are protected by the laws of the United States, the United Kingdom, the European Union and international treaty provisions.
1.3 Neither this Agreement nor any licenses granted hereunder may be assigned, sub-licensed or otherwise transferred or used for the benefit of third parties without the prior written consent of Optalitix.
1.4 Customer may not use, copy, alter, merge, adapt, modify, rent, or lease the Services, or any copy thereof, in whole or in part, except as expressly provided in this Agreement or under applicable statutes. Except to the extent applicable statutory law specifically prohibits such restrictions, Customer shall not reverse engineer or decompile the Services for any reason. Neither Customer nor its personnel who have access to the Services may use the Services to design software with similar or competitive functionality for distribution to third parties.
1.5 Customer shall ensure that that the Services are only accessed by the agreed number of users.
1.6 Customer acknowledges that the Services include certain third party software for which Optalitix has obtained the right to sub-license to Customer under all the terms hereof save as set out expressly herein.
2 License Fees
2.1 Customer shall pay the non-refundable license fees for the Services set out in the applicable invoice within 30 (thirty) days of the date of such invoice. Upon payment of the applicable license fees Optalitix will enable the Services. Past due amounts owed by the Customer shall bear interest at a rate of 1.5% (one and a half percent) per month or the maximum allowed under applicable law. Customer also shall be responsible for all reasonable costs incurred in the collection of past due amounts owed by Customer and all taxes and duties, including but not limited to any local sales taxes, withholding taxes or use taxes, or import or export duties, assessed in connection with the licensing of the Services (except for any taxes based on Optalitix net income).
2.2 Optalitix charges and collects in advance for use of the Services. Optalitix will automatically renew and issue an invoice to Customer. The renewal charge will be equal to the license fee in effect during the prior term unless Optalitix has given Customer at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter.
2.3 In addition to any other rights granted to Optalitix herein, Optalitix reserves the right to suspend or terminate this Agreement and Customer’s access to the Services if Customer’s account falls into arrears.
3 Confidentiality and Data
3.1 The Services contain certain confidential information of substantial value to Optalitix. Except as expressly permitted herein, Customer shall not use or disclose said confidential information, or cause it to be disclosed, to any third party.
3.2 No benchmark results nor results of any functional testing or evaluation of the Services shall be disclosed to any third party or used for any purpose other than to facilitate Customer’s internal use of the Services.
3.3 Optalitix does not own (“Customer Data”). Customer is a Data Controller under applicable Data Protection Legislation and warrants that it has complied and shall continue to comply with applicable law in relation to any Customer Data provided to Optalitix or used in conjunction with the Services. The Customer, not Optalitix, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Optalitix shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination, Customer’s right to access or use the Services and any Customer Data immediately ceases, and Optalitix shall have no obligation to maintain or forward any Customer Data unless otherwise agreed by the parties.
3.4 Customer consents to Optalitix processing the personal data that it collects from Customer in accordance with its policies.
4 Limited Warranty and Disclaimer
4.1 Optalitix warrants that prior to delivery of the Services to Customer, Optalitix has used commercially reasonable efforts to prevent the Services and any modified or enhanced versions of the Services prepared by, or at the direction of, Optalitix, from being infected with, any “worms”, “viruses”, “Trojan Horses”, “protect codes”, “data destruct keys” or other programs or programming devices that might be used to access, modify, delete or damage the Services, or other software, computer hardware or data of Customer.
4.2 Customer’s sole and exclusive remedy for breach of any of the above warranties shall be, at Optalitix option, the repair or replacement of the Services.
4.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 AND NOTWITHSTANDING ANY OTHER TERMS IN THIS AGREEMENT, OPTALITIX MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SERVICES, OR MAINTENANCE TO BE SUPPLIED BY OPTALITIX, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. OPTALITIX DOES NOT WARRANT THAT ANY SERVICES WILL BE ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ANY SERVICES CAN BE CORRECTED.
4.4 OPTALITIX SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OPTALITIX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. OPTALITIX DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
4.5 Customer hereby warrants that it has not been induced to enter into this Agreement by any prior representations whether oral or in writing except as expressly contained in this Agreement and hereby waives claim for breach of any such representations which are not so expressly mentioned.
5 Exclusion, Limitation on Liability
IN NO EVENT SHALL OPTALITIX BE LIABLE FOR ANY LOSS OF PROFITS, USE, BUSINESS, DATA OR INFORMATION, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF ANTICIPATED SAVINGS OR LOST DATA, EVEN IF OPTALITIX HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY AND ALL CLAIMS BY ANY THIRD PARTIES.
THE AGGREGATE LIABILITY OF OPTALITIX HEREUNDER WHETHER IN CONTRACT OR IN TORT SHALL IN NO EVENT EXCEED FEES PAID BY CUSTOMER OVER THE PRECEDING 12 (TWELVE) MONTHS.
6 Indemnity
6.1 Optalitix shall indemnify Customer for any claim, demand, or cause of action by a third party (“Demand”) to the extent that it is based upon a claim that the Services infringe any U.S. or U.K. patent, U.S. or U.K. trademark, or Berne Convention copyright, or that the Services misappropriate any trade secret of any third party within the country in which the Services are located. The foregoing indemnification is conditioned on Customer notifying Optalitix promptly in writing of such Demand, Customer giving Optalitix sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Customer cooperating in the defense thereof at Optalitix request and expense, provided that Customer may, at its own expense, assist in such defense if it so chooses. Optalitix, at its sole option and expense may: (a) procure for Customer the right to continue using the Services; or (b) substitute a non-infringing version of the Services so that the Services become non-infringing and still conform to the applicable specifications; or (c) return the license fee paid by Customer hereunder for the Services, less an amount equal to straight line depreciation of the Services over 4 (four) years, and Customer shall immediately return the Services to Optalitix. Customer shall not incur any costs or expenses on behalf of Optalitix under or pursuant to this Section without Optalitix prior written consent.
6.2 Optalitix shall have no liability to Customer for any Demand by a third party alleging infringement or misappropriation based upon (a) any use of the Services in a manner other than as permitted in this Agreement; or (b) any use of the Services in combination with any product not provided by Optalitix, including, without limitation, any third party technology or Applications to the extent that such Demand is directed against the combination: (c) Customer’s modification of the Services; or (d) modifications to the Services made by Optalitix at Customer’s direction or in accordance with specifications provided by Customer. The licensors of any third-party software may extend indemnities which are to be found in the third-party licenses referred to in 1.6 above. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEMANDS.
7 Term and Termination
7.1 The Agreement and the license granted herein shall be for an initial period of 1 (one) year from the Commencement Date (“Initial Term”), and shall continue, for consecutive 1 (one) year periods (each a “Renewal Term”), unless terminated by Customer in writing 30 days before the end of the then current term of the Agreement.
7.2 Optalitix may terminate this license and the Agreement immediately upon written notice to Customer if Customer breaches the provisions of Section 1 (License) or any Optalitix intellectual property rights. Either party may at its option terminate this license and the Agreement immediately upon written notice in the event that the other party: (a) commits a material breach of any term of this Agreement, which breach remains uncured for a period of 30 (thirty) days after written notice of such breach to the other party; (b) becomes insolvent or asserts that it is insolvent, fails to pay its general obligations as they become due, institutes or has instituted against it any proceeding, arrangement, receivership or assignment for the benefit of creditors, or files or has filed against it any petition under applicable bankruptcy laws. (
7.3 ON TERMINATION FOR ANY REASON CUSTOMER SHALL CEASE USING THE SERVICES AND ALL COPIES OF THE SAME SHALL BE IMMEDIATELY RETURNED TO OPTALITIX.
7.4 The operation of Clauses 1, 3, 5, 6, 7 and 8 shall survive the termination of this Agreement.
8 General
8.1 The Services are subject to laws and regulations that restrict export. Customer agrees not to export or “re-export” (transfer) the Services unless all applicable government export controls and approvals have been compiled with.
8.2 Optalitix and its licensors shall have the right to conduct an audit of (and to copy) Customer’s records on reasonable notice and not more than once in each 12 (twelve) month period to verify that Customer is complying with the terms hereof. In the event that an underpayment is revealed as the result of such audit Customer shall immediately upon being so requested by Optalitix pay such underpayment together with the costs of any such audit.
8.3 If one or more provisions of this Agreement are held to be illegal or unenforceable under applicable law, such illegal or unenforceable provision(s) shall be limited or excluded from this Agreement to the minimum extent required and the remaining provisions of this Agreement will remain in full force and effect and enforceable in accordance with its terms, and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the parties’ intent as closely as possible. This Agreement should not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation or drafting of this Agreement.
8.4 This Agreement shall be governed by in all respects, including validity, interpretation and effect, and construed under the laws of England and Wales and the parties hereto submit to the exclusive jurisdiction of the courts of England save that Optalitix may assert its intellectual property rights in any jurisdiction. The application of the UN Convention on Contracts for International Sale of Goods is expressly excluded. Any dispute shall be referred to the senior representatives of each Party to negotiate in good faith to resolve such dispute. Such representatives shall be given authority to settle the dispute and will, within 30 (thirty) days of a written request from one Party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not resolved at that meeting, the Parties will attempt to settle it by mediation with the Centre for Effective Dispute Resolution (“CEDR”) in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing (“ADR notice”) to the other Party to the dispute requesting mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 30 (thirty) days after the date of the ADR notice. The commencement of mediation will not prevent the Parties commencing or continuing court proceedings.
8.5 This Agreement contains the entire agreement of the parties, and supersedes any and all previous agreements addressed herein or with respect to the subject matter hereof, whether oral or written, and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement and any terms attached to any purchase order or other Customer document. Optalitix hereby rejects any terms or conditions on any purchase order or other supplements that are in addition to, or different from, the terms and conditions of this Agreement, and the parties agree that all such terms shall be void and of no force or effect. This Agreement may not be modified or waived except in writing signed by authorised representatives of both parties.
8.6 All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, or after being sent by prepaid certified or registered mail to and received by the address of the party to be noticed or such other address as such party last provided to the other by written notice.
8.7 This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned, in whole or in part, whether voluntarily or by operation of law (including by way of sale of assets, merger, consolidation, or otherwise), without Optalitix prior written consent. Any purported assignment by operation of law or otherwise is voidable in Optalitix sole discretion. Optalitix may assign this Agreement to any successor to its business. Nothing in this Agreement shall create or confer any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favor of any person other than the parties to this Agreement. Customer shall not assign, transfer, or sublicense any obligations or benefit under this Agreement without the prior written consent of Optalitix (and any such attempt shall be void). Optalitix may assign this Agreement in whole or in part.
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