OPTIMALEX Terms of Service
updated February 23rd, 2022
OPTIMALEX designs, develops, and markets legal analytics cloud-based software solutions and provides its Customers with innovative software technology leveraging natural language processing, machine learning and statistical techniques to offer advanced intelligence from more than millions of legal documents and data points.
Together with the order form, these terms and conditions shall be known as the Agreement and shall govern the relationship between Customer and OPTIMALEX regarding the use and License of the OPTIMALEX Solutions, related Software and Websites.
Each Order Form (as defined below) signed by Customer and approved and signed by OPTIMALEX CORP, a Delaware Corporation and any of its respective Affiliates (collectively, “OPTIMALEX”), is subject to the terms and conditions of this OPTIMALEX Master Software as a Service Agreement (together with Order Form the “Agreement”). OPTIMALEX and Customer may each be referred to herein as a “Party” or collectively as the “Parties.”
OPTIMALEX WISHES TO PROVIDE THE PRODUCTS AND SERVICES AS OUTLINED IN THE APPLICABLE ORDER FORM(S) AND CUSTOMER WISHES TO RETAIN OPTIMALEX TO PROVIDE SUCH PRODUCTS AND SERVICES. THE PARTIES AGREE THAT ALL OPTIMALEX LICENSED SOFTWARE PRODUCTS AND SERVICES PURCHASED BY CUSTOMER ARE SUBJECT TO THE TERMS AND CONDITIONS STATED HEREIN, COLLECTIVELY WITH ANY ORDER FORM(S).
1. DEFINITION AND RULES OF INTERPRETATION
1.1. “Account” means an account created by or for Customer with OPTIMALEX to use the OPTIMALEX online Platforms (the “OPTIMALEX Solutions”) and for any administrative purposes. “Billing Account” means the Account used by the User for administrative purposes including, but not limited to, providing identity and financial information, managing user accounts, etc. “Non-Billing Account” means the Accounts attached to a Billing Account used to use the OPTIMALEX Solutions.
1.2. “Additional Services” means those professional services provided in accordance with Section 4, as more particularly described in the Order Form. Such Additional Services may include, without limitation: (i) training services, (ii) assistance with the implementation or set-up of the OPTIMALEX Solutions, (iii) provision of comprehensive analysis reports of data collected by the OPTIMALEX Solutions; and/or (v) support and maintenance services.
1.3. “Affiliate” means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a Party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.4. “Agreement” means these terms and conditions, together with a completed and signed Order Form.
1.5. “Confidential Information” means all information provided directly or indirectly by a Party (the “Disclosing Party”), to the other party (the “Receiving Party”) before, on or after the date of the Agreement, whether orally or in writing, which is of confidential nature or which is designated as being confidential. For purposes of the Agreement Customer Data shall be deemed to be Confidential Information. Provided that for all intents and purposes, Confidential Information shall not be construed to include any information that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party's prior written approval;
1.6. “OPTIMALEX Solutions” means the product(s) ordered by Customer under the Agreement, as described in an Order Form, including upgrades and updates thereto that are made available by OPTIMALEX from time to time. The different parts of the OPTIMALEX Solutions shall be known as Features.
1.7. Feature means any individual functionality provided by OPTIMALEX in the OPTIMALEX Solutions whether purchased by Customer, available for sale, not available for sale or to be developed.
1.8. “Customer” means any entity that purchases the OPTIMALEX Solutions, as more particularly detailed in the Order Form.
1.9. “Customer Data” means, when applicable, (i) the data, materials or information provided or inputted by or on behalf of Customer or a User for the purpose of accessing and using the OPTIMALEX Solutions, in any and all forms; and (ii) all information derived from the foregoing, including results of processing the foregoing through the OPTIMALEX Solutions.
1.10. “Data Protection Laws” means any U.S. federal, state and local laws, as well as foreign laws and government-issued rules, regulations, guidelines, directives and requirements currently in effect or later implemented, modified, or amended, as they become effective that relate in any way to the privacy, security and processing of personal data, including data protection laws and their regulation in any jurisdiction applicable to the Parties.
1.11.“Documentation” means any and all online guides, user manuals, and other documents provided by OPTIMALEX to Customer under the Agreement, including any updates as provided from time to time to Customer.
1.12. “Fees” means all fees payable by Customer to OPTIMALEX as set out in the Order Form.
1.13. “Initial Term” means the initial term set out in the Order Form, commencing upon notification sent by OPTIMALEX to Customer after reception, by OPTIMALEX, of the payment by Customer of the fees agreed upon in the Order Form.
1.14. “Intellectual Property Rights” means all intellectual property rights in any part of the world, including, without limitation, patents, rights to inventions, utility models, copyright and related rights, trade and service marks, trade, business and domain names, rights in trade dress, rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semiconductor and topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or may subsist now or in the future.
1.15. “Order Form” means a written or online ordering document or form for the OPTIMALEX Solutions (and Additional Services if and when applicable) that is signed (or digitally signed) by the Parties, which together with these Terms and Conditions form a separate and independent agreement between OPTIMALEX and the Customer signing such Order Form.
1.16. “Renewal Term” means the period described in Section 13.1 of these Terms and conditions.
1.17. “Restricted Personal Data” means information that identifies or can be used to identify, contact or locate a specific individual including, without limitation, name, physical address, telephone number, fax number, email address, financial information (including, bank account numbers, credit or debit card information, PINs, government-issued IDs (including driver’s license number, passport number, national ID number, TIN or EIN number, social security number), and any information defined as “Personal Information” under applicable US Law.
1.18. “Term” means the Initial Term together with any subsequent Renewal Term(s).
1.19. “Users” means any and all employees, agents, and independent contractors of Customer or a Customer Affiliate who are given access to the OPTIMALEX Solutions in accordance with the Agreement, authorized to that purpose either by Customer or by a Customer Affiliate.
2. SUBSCRIPTION AND ACCOUNT
2.1. OPTIMALEX shall, during the Term, provide Customer with online access to the OPTIMALEX Solutions as described in the Order Form, in accordance with the terms of the Agreement.
2.2. To access and use the OPTIMALEX Solutions, OPTIMALEX will set up, for Customer, a Billing Account, which Customer shall maintain up to date. Customer shall set up Non-Billing Accounts. When any Account is set up , Customer must provide current, complete and accurate information. Customer shall be responsible for maintaining the security of the Account, log-in information and password(s), and shall take all necessary steps to protect the Account password from loss, theft, or unauthorized disclosure. Customer is fully responsible for its own and its Users’ and Representatives’ use of the Account in accordance with the terms of the Agreement. Without limiting its information security obligations under the Agreement, OPTIMALEX shall not be liable for any loss and/or damage resulting from Customer’s failure to comply with this Section 2, regardless of whether such damages are suffered by Customer or a third party. In addition, should Customer be involved in a dispute resulting from the use or misuse of the OPTIMALEX Solutions, OPTIMALEX shall be entitled to claim and reclaim all subsequent damages from Customer. Customer agrees to notify OPTIMALEX immediately upon learning of any known unauthorized access or use of the Account or any other breach of security of the Account.
3. CUSTOMER'S USE OF THE OPTIMALEX SOLUTIONS
3.1. Subject to the Agreement (including payment of the Fees by Customer), OPTIMALEX hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right and license to access and use the OPTIMALEX Solutions as a software as a service (SaaS) solution for enterprise, in each case, in accordance with the terms of the Agreement and any Documentation, during the Term only.
3.2. Customer hereby agrees that Customer shall not, nor shall Customer allow any third party, its Users or Representatives to (or attempt to): (i) copy, modify, adapt, frame, mirror, display, republish, download, translate or otherwise create derivative works of the OPTIMALEX Solutions; (ii) reverse engineer, de-compile, disassemble, reverse compile or otherwise attempt to discover the source code of the OPTIMALEX Solutions or any part thereof; (iii) rent, lease, sell, assign, sublicense or otherwise transfer rights in the OPTIMALEX Solutions; (iv) remove any proprietary or copyright notices on the OPTIMALEX Solutions or placed by the OPTIMALEX Solutions or any part thereof; (v) use, post, transmit or introduce any device, software or routine in a manner intended to interfere or attempt to interfere with the operation of the OPTIMALEX Solutions or any part thereof; or (vi) use the OPTIMALEX Solutions or any part thereof for illegal purposes.
3.3. Customer shall use the OPTIMALEX Solutions solely for Customer's internal business operations, in accordance with the terms and conditions of the Agreement and the Documentation. Customer shall not: (i) make the OPTIMALEX Solutions available for timesharing, application service provider or other monetized use for the benefit of third parties; (ii) use the OPTIMALEX Solutions outside of the scope of the license granted hereunder; or (iii) use the OPTIMALEX Solutions after the expiration or termination of this Agreement. Customer acknowledges and understands that continued use of the OPTIMALEX Solutions after the expiration or termination of the Agreement may cause irreparable harm to OPTIMALEX, and accordingly, OPTIMALEX may take any and all actions necessary and appropriate to protect its rights. OPTIMALEX may, at its sole discretion and without liability and without being subject to damages, or prejudice to its other rights under the Agreement, disable Customer’s and/or any Users’ access to the OPTIMALEX Solutions in the event of any breach or reasonably suspected breach of this Section 3 by Customer or its Users.
3.4. Customer may permit its applicable third-party consultants and contractors and/or its Affiliates (“Representatives”) to exercise all of the rights and licenses to the OPTIMALEX Solutions granted to them herein solely for the benefit of Customer’s internal business needs. Use of, or access to the OPTIMALEX Solutions by such Representatives shall not be deemed to modify any of the subscription terms, limitations or restrictions as set forth in an Order Form. If Customer permits Representatives to access or use the OPTIMALEX Solutions pursuant to the foregoing, Customer shall ensure such Representatives comply with the terms of the Agreement and shall remain in any event liable for any acts or omissions of its Representatives in breach of the Agreement with respect of their use of the OPTIMALEX Solutions.
3.5. Each Party shall comply with all applicable laws, rules and regulations in its provision, use of or access to the OPTIMALEX Solutions, and the Additional Services.
3.6. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback, excluding Customer Data, to OPTIMALEX with respect to the Services (“Feedback”). OPTIMALEX, in its sole discretion, shall determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants OPTIMALEX a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter thereof.
3.7. New functionalities may be developed by OPTIMALEX after the subscription date. Such functionalities are not included in the list of functionalities available to Customer unless (a) OPTIMALEX decides to include such functionalities as parts of Customer’s available functionalities or (b) upon proposal from OPTIMALEX, Customer decides to subscribe to and pay for such new functionalities.
3.8. Unless stated otherwise in the Order Form, Customer may make unlimited use of the OPTIMALEX Solutions and of its functionalities provided that (a) such use is done in a reasonable manner and that (b) such use does not, because of its nature or intensity, endanger, in any way, the OPTIMALEX Solutions.
3.9. Should customer engage in a use of the OPTIMALEX Solutions that OPTIMALEX deems to be contrary to the terms of section 3.8. above, OPTIMALEX reserves itself the right to take any and all measures including but not limited to restricting the number of queries Customer is allowed to make and suspending or permanently removing some or all accounts belonging to Customer.
4. ADDITIONAL SERVICES
4.1. Customer may purchase Additional Services upon mutual agreement of the Parties and execution of one (1) or more separate Order Form(s). Unless otherwise identified in an Order Form, all Additional Services must be used within the term set forth in the Order Form. Any portion of the Additional Services not used within such period shall be automatically forfeited, with no further action required of either Party. As such, the non-usage of those Additional Services may never lead to reimbursement or postponing of the services.
4.2. OPTIMALEX shall provide the Additional Services with reasonable skill and care and in accordance with generally recognized commercial practices and standards. This warranty is exclusive and in lieu of all other warranties and conditions, whether express or implied. No implied conditions, warranties or other terms shall apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
4.3. OPTIMALEX shall deliver all Additional Services remotely from OPTIMALEX’s offices unless otherwise mutually agreed between the Parties. If any OPTIMALEX resource is required to travel to Customer’s premises or any other third party premises to deliver the Additional Services to Customer, upon prior written approval of Customer, Customer shall be responsible for all reasonable travel expenses, hotel accommodations, and any other out-of-pocket travel expenses properly and reasonably incurred by OPTIMALEX in connection with the Additional Services as approved in advance in writing by Customer and in conformance with Customer’s travel expense policy for contractors.
4.4. OPTIMALEX may provide Customer with technical support services (“Support Services”) in accordance with the support level set forth in the Order Form (each level a “Support Package”). OPTIMALEX may update the Support Package from time to time, upon prior written notice to Customer, provided that such updates shall not, in an excessively adverse manner, affect the existing support service levels. Customer shall provide OPTIMALEX with sufficient data and assistance with respect to any reported issue and shall reasonably cooperate with OPTIMALEX in order for OPTIMALEX to comply with its support obligations under the applicable Support Package.
5. PROPRIETARY RIGHTS
5.1. Customer acknowledges and agrees that the OPTIMALEX Solutions and all Intellectual Property Rights in the OPTIMALEX Solutions, including any and all updates, enhancements, derivatives, modifications or improvements thereof created by or on behalf of OPTIMALEX, are, and shall remain, the sole property of OPTIMALEX and/or its licensors. Except as expressly stated in the Agreement, the Agreement does not grant Customer any Intellectual Property Rights or any other rights or licenses in respect of the OPTIMALEX Solutions. OPTIMALEX expressly reserves all right, title and interest in and to any Intellectual Property Rights not specifically granted to Customer herein.
5.2. OPTIMALEX acknowledges and agrees that Customer (or Customer Affiliate(s) as applicable) remains at any time the sole owner of (or where applicable, must ensure it has a valid license to) the Customer Data. Customer hereby grants OPTIMALEX and its Affiliates a revocable, non-exclusive, non-sublicensable, worldwide royalty-free, right and license to use the Customer Data solely to the extent necessary to perform its obligations under the Agreement. Customer also grants OPTIMALEX and its Affiliates a non-exclusive, perpetual, worldwide, royalty-free, right and license to compile and use Customer Data, strictly in order to research, develop, modify, improve or support the services provided by OPTIMALEX, provided that such data is used in an anonymous or aggregated form.
5.3. Customer may decide to input its own database of cases into the OPTIMALEX Solutions, directly or through the intervention of OPTIMALEX. In doing so, Customer agrees that such data is not considered to be Customer Data as defined above. Customer also grants OPTIMALEX and its Affiliates a perpetual, worldwide, royalty-free, right and license to anonymously compile and use such data, strictly in order to research, develop, modify, improve or support the OPTIMALEX Solutions.
6.1. The Receiving Party shall only use Confidential Information for the purposes of the Agreement and shall not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (i.e., temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this Section 6. The Receiving Party shall treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care.
6.2. The Receiving Party may disclose Confidential Information: (a) as approved in a writing signed by the Disclosing Party; (b) as necessary to comply with any law or valid order of a court or other governmental body; or (c) as necessary to establish the rights of either party, but only if, in the case of Section 6.2(b) and Section 6.2(c), the Receiving Party: (i) promptly notifies the Disclosing Party the particulars of the required disclosure, if legally permitted to provide such notice; and (ii) gives the Disclosing Party all assistance reasonably required by the Disclosing Party to enable the Disclosing Party, at Disclosing Party’s sole expense, to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.
6.3. The Receiving Party is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the Recipient under this Section 6.
6.4. Each Party shall advise the other Party immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of the Agreement and it shall cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
6.5. Upon termination of the Agreement, in whole or in part, each Party shall, within ninety (90) calendar days from the date of termination (or as otherwise agreed as the retention period under the Agreement or the applicable Order Form with respect to Customer Data), return or destroy all Confidential Information received from the other Party, or created or received by a Party on behalf of the other Party, which are in such Party’s possession.
6.6. The provisions of this Section 6 shall survive the expiration or termination of the Agreement for a period of five (5) years except that: (i) any trade secrets (including, but not limited to source codes, technology, algorithms, and protocols) shall be deemed and treated as Confidential Information for as long as such information continues to be protectable as trade secret information under applicable law; and (ii) Personal Data related to Customer and/or its Affiliates and/or Customer’s own Clients shall continue to be treated as Customer’s Confidential Information indefinitely.
7. PERSONAL DATA AND CUSTOMER DATA
7.1. OPTIMALEX agrees to: (i) comply with applicable privacy, Data Protection Laws and regulations; and (ii) maintain a written privacy and information security program, that includes appropriate physical, technical, administrative, and organizational safeguards, designed to: (a) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; (b) protect against unauthorized disclosure, alteration, access to, or use of the Customer Data; (c) ensure the proper disposal of Customer Data; and, (d) ensure that all employees, agents, and subcontractors, if any, comply with all of the foregoing.
7.2. Customer shall use the OPTIMALEX Solutions in accordance with all applicable laws, including any applicable privacy or Data Protection Laws. Customer acknowledges and agrees that it is Customer’s responsibility to ensure that Customer’s use of the OPTIMALEX Solutions complies with all Data Protection Laws applicable to Customer, including, but not limited to (i) providing the appropriate notice to its users (that clearly and accurately discloses its privacy practices (including how data is collected and used); and (ii) if required by law, obtaining and maintaining a record of consent. Customer warrants it has a valid lawful basis to collect and enable the processing of Customer Data pursuant to the terms of the Agreement. Customer shall not commit any act or omit to act in a way which places or is likely to place OPTIMALEX in breach of any Data Protection Laws or any other applicable laws or regulations.
8. DATA SECURITY
8.1. OPTIMALEX shall use best commercial efforts to comply with reasonable security standards with regards to Customer Data (“Security Standards”) which may be further described by OPTIMALEX on its website from time to time. The Provider shall ensure that persons authorized to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Both Parties shall each implement appropriate technical and organizational measures to ensure an appropriate level of data security.
9.1. Each of Customer and OPTIMALEX represent and warrant to each other that: (i) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has all requisite corporate power, and authority to execute, deliver, and perform its obligations under the Agreement; (iii) the execution, delivery, and performance of the Agreement has been duly authorized by it and the Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; and, (iv) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under the Agreement and shall obtain all applicable permits, consents and licenses required of it in connection with its obligations under the Agreement.
9.2. OPTIMALEX represents and warrants to Customer that: (i) the OPTIMALEX Solutions, as available to Customer, and the Additional Services shall not infringe, violate or misappropriate upon any third-party Intellectual Property Rights or other proprietary right; (ii) it shall provide the OPTIMALEX Solutions and Addition Services in a competent, workmanlike, and professional manner; (iii) it shall not knowingly introduce any computer viruses, malware, or similar malicious software into Customer’s computing and network environment and shall take reasonable steps to ensure such viruses are not introduced through the OPTIMALEX Solutions.
9.3. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET OUT ABOVE IN THE AGREEMENT, OPTIMALEX MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS WARRANTIES, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER WITH RESPECT TO THE OPTIMALEX SOLUTIONS, SOFTWARE, PLATFORM, DOCUMENTATION, OR ADDITIONAL SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, OPTIMALEX DOES NOT WARRANT THAT THE OPTIMALEX SOLUTIONS, DOCUMENTATION, OR ADDITIONAL SERVICES SHALL MEET CUSTOMER NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE OPTIMALEX SOLUTIONS WILL BE UNINTERRUPTED. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE OPTIMALEX SOLUTIONS BY CUSTOMER AND FOR CONCLUSIONS DRAWN FROM SUCH USE. OPTIMALEX SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR RESULTS PROVIDED TO OPTIMALEX BY CUSTOMER IN CONNECTION WITH THE OPTIMALEX SOLUTIONSS OR ANY ACTIONS BY OPTIMALEX AT CUSTOMER’S DIRECTION. THE OPTIMALEX SOLUTIONS, DOCUMENTATION, OR ADDITIONAL SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS. THE OPTIMALEX SOLUTIONS AND ANY RESULT PROVIDED BY IT DO NOT CONSTITUTE LEGAL ADVICE AND OPTMALEX AND CUSTOMER ARE NOT IN AN ATTORNEY-CLIENT RELATIONSHIP. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THE AGREEMENT.
9.4. ACCESS TO THE OPTIMALEX SOLUTIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OPTIMALEX SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS FULL KNOWLEDGE OF THE CHARACTERISTICS AND CONSTRAINTS OF THE INTERNET AND IN PARTICULAR THAT INFORMATION AND DATA TRANSMISSION, AND ANTI-INTRUSION SYSTEMS, MAY HAVE A LIMITED RELIABILITY AND TECHNICAL SAFETY LEVEL. CUSTOMER FURTHER REPRESENTS AND ACKNOWLEDGES TO OPTIMALEX THAT CUSTOMER UNDERTANDS THAT COMPLEX SOFTWARE LIKE THE OPTIMALEX SOLUTIONS IS NEVER WHOLLY FREE FROM DEFECTS, ERRORS AND POSSIBLE BUGS FROM TIME TO TIME.
10.1. Customer agrees to indemnify, defend and hold OPTIMALEX, its owners, directors, officers, employees, consultants, and its Affiliates harmless from and against all claims and third-party claims, losses, liabilities, costs and expenses arising out of or related to the use of the OPTIMALEX Solutions by the Customer and/or its Affiliates, or attributable to Customer’s breach of any term of the Agreement.
11. LIMITATION OF LIABILITY
11.1. Subject to Section 11.4, this Section 11 sets out the entire financial liability of either Party (including any liability for the acts or omissions of either Party’s employees, agents or sub-contractors) to the other Party arising under the Agreement, including in respect of: (i) any breach of any obligation (whether implied or express) arising out of or in connection with the Agreement; (ii) any use of the OPTIMALEX Solutions by the Customer or any part of them; and, (iii) any representation, statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with the Agreement.
11.2. Subject to Section 11.4, neither Party shall under any circumstances whatsoever be liable to the other Party for any loss of profit, loss of contracts, loss of business opportunities, loss of revenue, loss of operation time, loss of operational effectiveness, loss of anticipated savings or loss of use of any equipment or process, loss or damage to goodwill and or similar losses or corruption of data or information, pure economic loss or for any incidental, special, consequential or indirect loss or damage howsoever arising under the Agreement.
11.3. Subject to Section 11.4, each Party’s total aggregate liability arising under or in connection with the Agreement or the performance or contemplated performance of the Agreement shall be limited to the Fees actually paid by Customer for the OPTIMALEX Solutions under the applicable Order Form during the twelve (12) months immediately preceding the date on which the claim arose.
11.4. Nothing in the Agreement excludes or limits the liability of either Party for: (i) fraud or willful misconduct; (ii) death or personal injury caused by either Party’s gross negligence; (iii) breach by Customer and/or its Affiliates of any of the restrictive covenants or confidentiality provisions related to the protection of OPTIMALEX and/or its Affiliates’ Intellectual Property, or (iv) any other liability which may not be limited or excluded by applicable law.
11.5. For clarity purposes, OPTIMALEX shall have no liability for any damage caused by errors or omissions.
12. CHARGES AND PAYMENT
12.1. Customer shall pay the Fees set out in the Order Form(s). All Fees shall be invoiced by OPTIMALEX in accordance with the provisions of the Order Form(s). Unless otherwise stated in the respective Order Form, payment is due by Customer within thirty (30) days from Customer’s receipt of the invoice.
12.2. Without prejudice to any other rights OPTIMALEX may have, if Customer fails to make payment in accordance with the Agreement within ten (10) days of receipt of a written reminder requesting it to comply with its obligations hereunder, then OPTIMALEX may: (i) charge interest at a monthly rate equal to the greater of 1.5% per month or the maximum rate permitted by applicable law on any overdue fees from the due date until the date the overdue amount (plus applicable interest) is paid in full, and/or (ii), if Customer already had access, suspend access to all or part of the OPTIMALEX Solutions until such time as Customer’s obligations have been fully complied with.
12.3. The Fees for the Initial Term shall be the prices set out in the Order Form. After the Initial Term, unless otherwise agreed by the Parties under the Order Form, all prices set out in the Order Form with respect to the same scope of services, may be revised annually every 1st of January, with a default escalation per annum at 6%.
12.4. All Fees stated or referred to in the Agreement: (i) shall (unless otherwise detailed in the Order Form) be payable in US dollars; (ii) are exclusive of any applicable taxes or charges (including any excise, sales, use or other transaction-based tax, or value added or non-resident withholding tax). For the avoidance of doubt, Fees paid are non-cancellable and non-refundable (unless otherwise stated under the Agreement).
12.5. Customer is responsible for providing complete and accurate billing and contact information to OPTIMALEX and notifying OPTIMALEX of any changes to such information. OPTIMALEX reserves the right to charge Customer a convenience fee of up to 3% for any Credit or debit Card payment transaction. OPTIMALEX also reserves the right to require payment by ACH, Wire or automated withdrawal/direct deposit. Payment term to be contracted in the Order Form.
12.6. Any terms and conditions included in a Customer purchase order shall be deemed to be solely for the convenience and no such term or condition shall be binding upon the Parties.
13. TERM AND TERMINATION
13.1. The Agreement shall commence upon notification given to Customer by Optimalex after reception, by OPTIMALEX, of Customer’s payment of the fees agreed upon in the Order Form. The Agreement shall continue for the Initial Term. After the Initial Term, the Agreement shall automatically renew for successive periods of the same duration as the initial term, unless stated otherwise in the Order Form (each a “Renewal Term”), unless either Party gives written notice to the other to terminate the Agreement not less than thirty (30) days before the end of the Initial Term or any Renewal Term (as the case may be), in which case the Agreement shall terminate at the end of the Initial Term or Renewal Term (as applicable); provided that OPTIMALEX may terminate the Agreement for convenience upon 30 Day notice and refund Customer for the pro-rated unused/unexpired remainder of the Term.
13.2. Without prejudice to any other rights or remedies which the Parties may have under the Agreement, either Party may terminate the Agreement without liability to the other upon giving written notice to the other if the other Party is in material breach of the Agreement and the breaching Party fails to remedy that breach within thirty (30) days after receiving written notice of such breach.
13.3. Either Party may terminate the Agreement, in whole or in part, immediately upon written notice: (i) if required by law, rule or regulation, and (ii) if the other Party is in breach of any confidentiality provisions of the Agreement.
13.4. Upon termination of the Agreement: (i) all rights granted to Customer under the Agreement shall immediately terminate; and (ii) Customer shall immediately cease all use of the OPTIMALEX Solutions.
13.5. Upon the termination of the Agreement or an Order Form, Customer shall pay to OPTIMALEX all amounts due and payable pursuant to such Order Form, if any, and if and only if terminated by Customer for cause pursuant to Section 13.2 or 13.3, or by OPTIMALEX for convenience as provided hereunder, OPTIMALEX shall refund to Customer all prepaid amounts on a pro rata basis with respect to the period as of the termination effective date and the expiration of Term.
13.6. All obligations under the Agreement which are expressed, or by their nature are intended, to survive beyond the termination or expiry of this an Order Form or Agreement shall survive the termination or expiry of any such Order Form or the Agreement.
14.1. Headings. The section headings herein are provided for ease of reference only and shall have no legal effect.
14.2. Force Majeure. Save for an obligation for Customer to pay the Fees under the Agreement, each Party shall not have any liability to the other if it is prevented from performing the Agreement on account of a Force Majeure Event. The term “Force Majeure Event” shall many any unavoidable cause, event or circumstances beyond a Party’s reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, earthquakes, fires, floods, epidemics, or pandemics. If a Party is not able to perform any obligation or duty hereunder due to a Force Majeure Event, which could not with the exercise of diligent efforts have been avoided, the affected Party shall use its best efforts to mitigate the effects of any such failure or delay in performance. In the event that a Party is subject to a Force Majeure Event, the Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and details of the Force Majeure Event and fees shall be refunded on a pro-rata basis after a period of sixty (60) in the event the Force Majeure Event persists beyond the notice of the Force Majeure Event.
14.3. Commercial Reference. Customer hereby grants OPTIMALEX with the right to use and display Customer’s name, logo and/or any other identifying words or marks associated with Customer, in whole or in part, and in any media for the sole purposes of identifying Customer as a customer of OPTIMALEX.
14.4. Non-Solicitation. Customer shall not individually or in concert with any other person or entity, without the prior written consent of OPTIMALEX, solicit, either directly or indirectly, on its own behalf or any other’s behalf, any of OPTIMALEX or its Affiliates Personnel during the Term of the Agreement and for a period of twelve (12) months thereafter. For the purposes of this Section 14.4, “Personnel” includes any individual or entity OPTIMALEX employs or otherwise contractually engages as a partner, employee or independent contractor or advisor and which Customer may come into contact within the course of the Agreement.
14.5. Transfer and Assignment. Neither Party may transfer or assign any of its rights or obligations under the Agreement without the prior written consent of the other Party, except that either Party may assign the Agreement as a whole without such consent to any Affiliates (provided that the assigning Party shall remain primarily liable for the performance of the any such Affiliate). In the event that any person or entity acquires by sale, merger or otherwise, all or substantially all of Customer’s assets, stock or business, the contract between the acquiring entity and OPTIMALEX shall be renegotiated in good faith.
14.6. Amendments and Waivers. No modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, shall be effective unless in writing signed by the Parties to the Agreement. No delay or failure to require performance of any provision of the Agreement shall constitute a waiver of that provision as to that or any other instance.
14.7. Severability. If any provision of the Agreement or the application thereof to any Party or circumstance shall to any extent be declared invalid, illegal or unenforceable in any jurisdiction, that provision shall be severed from the Agreement as to such jurisdiction (but, to the extent permitted by law, not elsewhere), and shall not affect the remaining provisions hereof. The Parties agree to substitute for such provision a valid provision that most closely approximates the intent and economic effect of such severed provision.
14.8. Nature of Relationship. The Parties are independent contractors and nothing in the Agreement shall be construed as constituting a partnership, joint-venture, common undertaking or other association between the Parties. Neither Party shall be deemed to be an employee, agent, partner nor legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. The Parties shall take all necessary precautions to ensure that third parties cannot consider the other Party to be their representative or agent.
14.9. No Third-Party Beneficiary Rights. Nothing in the Agreement, express or implied, is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of the Agreement.
14.10 Notices. Unless otherwise specifically indicated, all notices under the Agreement, or an Order Form, must be in English, in writing, and addressed as follows: (i) in the case of OPTIMALEX to firstname.lastname@example.org and (ii) in the case of Customer to the postal address or email address detailed in the Order Form, or such other address as either Party has notified the other, in accordance with this Section 14.10.
14.11. Governing Law. The Agreement and any dispute(s) or claim(s) arising out of or in connection with it or its subject matter or formation (including non-contractual dispute(s) or claim(s)) shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provisions or rule (whether of the State of New York or any other jurisdiction). In relation to any dispute(s) or claim(s), each Party irrevocably agrees that the courts of New York, County of New York shall have exclusive jurisdiction to settle any such dispute(s) or claim(s).
14.12. Entire Agreement. The Agreement, and any documents referred to in it, constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter (including any Customer purchase orders). Each Party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Agreement. Each Party represents and warrants that in entering into the Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings (or the failure or omission of the other Party to make statements, assurances, representations or undertakings) other than what is expressly set forth in the Agreement. The Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one instrument. The Agreement may be executed and delivered via facsimile or electronic scan (PDF) or signed digitally.