END USER LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY:
This End User License Agreement (“Agreement“) constitutes a valid and binding agreement between Optitex Ltd. (together with its affiliates, successors and assigns “Optitex“) and you (“you” or “your“) for the use of the Optitex Software, either a stand-alone or network version, or the Optitex Cloud Services, or Optitex Services, as those terms defined below. You must read this Agreement and agree to its conditions in order to install and use the Optitex Software, the Optitex Cloud Services, or Optitex Services.
BY INSTALLING AND USING THE OPTITEX SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE OPTITEX SOFTWARE.
1. License Grant.
Subject that you accept and agree to the terms of this Agreement, Optitex hereby grants you a limited, non-exclusive, personal, non-sub licensable, non-assignable or transferable license to download, install and use the Optitex Software, including any online or enclosed documentation, data distributed to your computer for processing and any future programming fixes, updates and upgrades provided to you (collectively, the “Optitex Software” or “Software”) onto a computer for your sole use to install, interact with and utilize the Optitex Software, including the content and features contained therein and the services, Updates and Upgrades related thereto (“Services”). The Optitex Software may only be used in connection with the Services. As used herein, the term “Network” means the universe of computers connected to a Local Network or/and to the Internet that are operating the Optitex Software.
2. License Restrictions.
a. Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Services, Optitex Software or any copy thereof; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling or hacking of the Optitex Software, and / or any of its Services by hard copy or over the Internet Network; (iii) sell, assign, rent, lease, act as a service bureau, allow the use of, or grant rights in the Optitex Software or Services, including, without limitation, through sublicense, to any other entity without the prior written consent of Optitex; (iv) export or re-export the Optitex Software in violation of applicable export laws; (v) use the Optitex Software or Services for any commercial purpose that is not legal in your area; or (vi) use the Optitex Software or Services to, or in any way that would violate any applicable law, regulation or ordinance; (vii) collect any information or communication about the Network or users of the Optitex Software or Services by monitoring, interdicting or intercepting any process of the Optitex Software; and (viii) use any type of boot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble the Optitex Software. Furthermore, you may not use the Optitex Software or Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Optitex Software or Services, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people; and (F) impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias.
b. Optitex’ Confidential Information. The Optitex Software and Services contain confidential and trade secret information owned or licensed by Optitex. You agree to take all reasonable steps at all times to protect and maintain any confidential information regarding Optitex, its Affiliates, the Optitex Staff, the Optitex Software and the IP Rights, strictly confidential.
c. The Optitex Software and Services may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Optitex to enforce any of your rights. All modifications or enhancements to the Optitex Software and Services remain the sole property of Optitex. You understand that Optitex, in its sole discretion, may modify or discontinue or suspend your right to access any of its Services or use any of the Optitex Software at any time, and may at any time suspend or terminate any license hereunder and disable any Optitex Software you may already have accessed or installed without prior notice. Optitex reserves the right to add additional features or functions to the Optitex Software.
d. Internet-Based Services Components. The Software contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Optitex may, upon prior coordination with you, check the version of the Software and/or its components that you are utilizing and may provide upgrades or fixes or any other kind of changes to the Software that will be downloaded and installed to your Workstation Computer. You agree that Optitex may collect any information from your workstation in order to protect its IP rights. All data that will be collected may be sent to Optitex servers using your Internet and network connections and infrastructure.
e. Mandatory Activation. The license rights granted under this Agreement require you to supply information required to activate your licensed copy in the manner described during the setup sequence of the Software until the license is terminated. You can activate the Software through the use of the Internet or telephone; toll charges may apply. You may also need to reactivate the Software if you modify your computer hardware or reinstall the Software. There are technological measures in this Software that are designed to prevent unlicensed use of the Software. Optitex will use those measures to confirm that you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates. Optitex’ Software may use your internal network and Internet connection for the purpose of transmitting license-related data during installation, registration, operation or update of the Software to an Optitex-operated license server and validating the authenticity of the license-related data in order to protect Optitex against unlicensed or illegal use of the Software and to improve customer service. Activation is based on the exchange of license related data between your computer and the Optitex license server. You agree that Optitex may use these measures and you agree to follow any applicable requirements.
3. Permission to Utilize Your Computer.
a. In order to receive the benefits provided by the Optitex Software, you hereby grant permission for the Optitex Software to utilize the processor and bandwidth of your computer for the needs of the Optitex Software during your use of the Optitex Software.
b. Protection of Your Computer (resources). You understand that Optitex will use commercially reasonable efforts to protect the privacy and integrity of your computer resources and your communication; however, you acknowledge and agree that Optitex cannot give any warranties in this respect.
4. Optitex Cloud Services.
a. Optitex may make the Optitex Software available as a cloud service pursuant to this Agreement during the Term (hereinafter referred to as the “Optitex Cloud Services”), in which case the provisions of this paragraph 4 shall apply in addition to (and not in lieu of) all other terms and conditions contained herein.
b. Unless otherwise specified: (i) Optitex Cloud Services are purchased as subscriptions and may be accessed only in accordance with the applicable purchase order, contract, proposal or any other contractual document entered between you and Optitex; (ii) additional quantities may be added during the applicable subscription term at the same pricing as that for the preexisting quantities thereunder, prorated as applicable for the remainder of the subscription term; and (iii) the added quantities shall terminate on the same date as the pre-existing subscriptions. Any User-based subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Optitex Cloud Services. “Users” means individuals who are authorized to use the Optitex Cloud Services for their sole use, for whom subscriptions to Optitex Cloud Service have been ordered, and who have been supplied user identifications and passwords.
c. Optitex shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Data. “Data” means any electronic data or information submitted by you or for you to the Optitex Cloud Services, or is collected and processed by you or for you, using the Optitex Cloud Services, excluding information, including but not limited to links, posts, and excerpts, that has been obtained by Optitex or on Optitex behalf from publicly available sources, and data derived therefrom. Optitex shall not: (a) modify your Data; (b) disclose your Data except as compelled by law or as expressly permitted in writing by you; or (c) access your Data except to provide the Optitex Cloud Services and prevent or address service or technical problems, or at Optitex request in connection with customer support matters.
d. You shall: (i) be responsible for Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of the Data and of the means by which you acquire Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Optitex Cloud Services, and notify Optitex promptly of any such unauthorized access or use; and (iv) use the Optitex Cloud Services only in accordance with the Documentation and applicable laws and government regulations. “Documentation” means Optitex training, help, how-to and explanatory materials that assist you in using the Optitex Software and Optitex Cloud Services, as such materials may be updated from time to time or otherwise as made available by Optitex.
e. You shall not: (i) make the Optitex Cloud Services available to anyone other than Users; (ii) sell, resell, rent, or lease the Optitex Cloud Services; (iii) use the Optitex Cloud Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (iv) use the Optitex Cloud Services to store or transmit Harmful Code; (v) interfere with or disrupt the integrity or performance of the Optitex Cloud Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Optitex Cloud Services or their related systems or networks. “Harmful Code” means any: (i) virus, trojan horse, worm, backdoor or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or (ii) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person, or otherwise deprive one of its lawful right to use such software.
g. Optitex Cloud Services may be subject to other limitations, such as, for example, limits on disk storage space, or other usage limits. Any such limitations are specified in the Documentation or the purchase order, contract, proposal or any other contractual document entered between you and Optitex.
5. Proprietary Rights.
The Optitex Software, Optitex Cloud Services and Services contain proprietary and confidential information of Optitex, including copyrights, trade secrets and trademarks contained therein, which are protected by international copyright laws. Title to and ownership of the Optitex Software, Optitex Cloud Services and Services including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of Optitex and its suppliers, and except for the limited license granted to you herein, Optitex reserves all right, title and interest in and to the Optitex Software, Optitex Cloud Services and Services. You shall not take any action to jeopardize, limit or interfere with Optitex ownership of and rights with respect to the Optitex Software, Optitex Cloud Services and Services. You acknowledge that any unauthorized copying or unauthorized use of the Optitex Software, Optitex Cloud Services or Services is a violation of this Agreement and copyright laws and is strictly prohibited.
6. Term and Termination.
a. This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until terminated by either party as set forth herein.
b. You may terminate this Agreement at any time provided you cease all use of the Optitex Software and Services and destroy or remove from all hard drives, networks, and other storage media all copies of the Optitex Software in your possession.
c. In case of breaching any part of this Agreement, Optitex may terminate this Agreement at any time, with or without cause, by providing notice to you and/or preventing your access to the Optitex Software and/or Services.
d. Upon termination of this Agreement for any reason (i) all licenses and rights to use the Optitex Software and the Services shall terminate and you must remove the Optitex Software from your computer equipment and dispose of all originals and copies of the Optitex Software in your possession, and (ii) Sections 2.b., 5, 7 through 10, and 13 shall survive such termination.
Unless you are using a DEMO release of Optitex Software, You acknowledge that Optitex Software is only available to paid to To subscribe to the Subscription Services you must AGREE to the terms and conditions of the Subscription Service.
7. Your Representations and Warranties.
a. You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the Optitex Software and Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the Optitex Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Optitex with respect to the Optitex Software and/or data transmitted, processed or stored by Optitex or other users of the Optitex Software, (iv) you will always provide and maintain true, accurate, current and complete information as requested by Optitex, and (v) you will only use the Optitex Software and Services on a computer on which such use is authorized by the computer’s owner.
b. You agree that you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the Optitex Software and any of its additional parts, except to remove the Optitex Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the Optitex Software License. Optitex reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
c. If Optitex has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Optitex may terminate this license, deny any or all use of the Optitex Software and/or Services, and pursue any appropriate legal remedies.
d. Your Data. (i) You acknowledge and agree that Optitex may directly and remotely communicate with the Optitex Software or Optitex Cloud Services in order to provide maintenance and to collect information such as: (1) software, software versions, software features and operating systems being used by you, (2) processing times taken by the Optitex Software or Optitex Cloud Services, and (3) IP address of the server which returns the above listed information. (ii) The information collected under paragraph (i) may be used for the purposes of (1) providing the Optitex Software and Optitex Cloud Services and performing this Agreement, (2) verifying your compliance with the Agreement, (3) evaluating and improving the performance of the Optitex Software and Optitex Cloud Services, (4) preparing statistical analysis on the usage of Optitex Software and Optitex Cloud Services, (5) planning development roadmaps and product lifecycle strategies, (6) issuing alerts and notices to you. (iii) By installing or using the Optitex Software or Optitex Cloud Services or accepting this Agreement, you expressly confirm your consent to the use of data and information as set out herein, and you further warrant that you have obtained all necessary consents and provided all necessary notifications in order to share such data and information with Optitex for the purposes outlined.
You agree to indemnify, hold harmless and defend Optitex and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Optitex arising out of or relating to your (a) violation or breach of any representation, warranty or obligation under this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the Optitex Software and/or Services.
9. Disclaimer of Warranties.
a. THE OPTITEX SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND, OTHER THAN THOSE EXPRESSLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY OPTITEX, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE OPTITEX SOFTWARE OR SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. OPTITEX FURTHER DOES NOT REPRESENT OR WARRANT THAT THE OPTITEX SOFTWARE OR ANY SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT DATA LOSS, NOR DOES OPTITEX WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF DATA MADE THROUGH THE OPTITEX SOFTWARE OR THE SERVICES.
b. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE OPTITEX SOFTWARE AND SERVICES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
c. THE OPTITEX SOFTWARE IS UTILIZED AND DISTRIBUTED BY THIRD PARTIES WHICH ARE UNRELATED TO OPTITEX. YOU ACKNOWLEDGE THAT INSTALLATION OF THE OPTITEX SOFTWARE LICENSE DOES NOT PREVENT THIRD PARTIES WHO ARE NOT AN OPTITEX USER THE ABILITY TO COMMUNICATE WITH YOUR COMPUTER (“OUTSIDE PARTIES”). YOU AGREE THAT OPTITEX WILL NOT BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AS STATED IN PARAGRAPH 10(a) BELOW, RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE OUTSIDE PARTIES.
d. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS SET FORTH IN THIS SECTION 9, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability.
a. IN NO EVENT SHALL OPTITEX, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR NETWORK SERVICE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE OPTITEX SOFTWARE OR THE SERVICES, EVEN IF OPTITEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE OPTITEX SOFTWARE AND/OR SERVICES IS TO REPLACE THE DEFECTIVE CD MEDIA.
c. As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to you.
11. Support & Upgrade.
Support and Upgrade are provided ONLY to those users who are entitled to this service. Meaning: Only user that will pay the annual service and upgrade fee is entitled to these services.
12. Electronic Signatures and Agreements.[suitable for internet download]
You acknowledge and agree that by clicking on the button labeled “I AGREE”, “DOWNLOAD” or such similar links as may be designated by Optitex to download the Optitex Software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE OPTITEX SOFTWARE OR SERVICES. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
13. General Provisions.
OptiTex reserves all rights not expressly granted herein. Optitex may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on its website located at www.Optitex.com. Your continued use of the Optitex Software and/or Services shall constitute your acceptance of such revised Agreement. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership or joint venture between you and Optitex. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. The failure of Optitex at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of any court of the State of Israel sitting in Tel-Aviv and you irrevocably consent to the jurisdiction of such courts. The terms set forth in this Agreement and any related service agreements constitute the final, complete and exclusive agreement with respect to the Optitex Software and Services and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. Optitex may at its sole discretion assign this Agreement to a subsidiary or sister company, without giving prior notice.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE OPTITEX SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO OPTITEX THE RIGHTS SET FORTH HEREIN.