THIS O/CLOUD SERVICES MASTER AGREEMENT (as defined below) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT RELATES TO THE SUBSCRIPTION SERVICES OR THIS AGREEMENT, OR BY USING THE SUBSCRIPTION SERVICES DURING A TRIAL PERIOD, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are Optitex’s direct competitor, except with Optitex’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the Optitex Contracting Entity for the applicable region as described in Section 12 (“Optitex”). It is effective between Customer and Optitex as of the last date this Agreement is executed, upon executing an Order, by accessing or using the Subscription Services in any manner or by clicking “Accept” (or a similar button or checkbox) for use of a Free Trial Service (“Effective Date”). If Customer has a fully executed O/Cloud Services Master Agreement then such fully executed O/Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services.
Optitex may make the Subscription Services available to Customer on a trial basis free of charge (the “Free Trial Services”). If Optitex offers Customer a free trial, it will run until the earlier of (a) the end of the trial period for which Customer agreed to use such Free Trial Services, (b) the start date of any Order for purchase of the Subscription Services or (c) termination of the Free Trial Services by Optitex in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST UNLESS SET OUT DIFFERENTLY IN AN ORDER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY IMPLIED OR OTHERWISE AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL SERVICE. OPTITEX SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL SERVICE, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OPTITEX’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS ONE THOUSAND UNITED STATES DOLLARS ($1,000.00).
“Affiliate” is an entity that controls, is controlled by or shares common control with Optitex or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Agreement” means this O/Cloud Services Master Agreement, the Data Processing Addendum and Order(s).
“Capacity” means cloud storage capacity of at least 1 TB for use with the Subscription Services and such additional cloud storage amount purchased as specified in an Order.
“Customer Content” means all data, files, or information accessed, used, communicated, stored, or submitted by Customer or Permitted Users related to the Customer or a Permitted User’s use of the Subscription Services.
“Data Processing Addendum” means the terms of the data processing addendum entered into between the Customer and Optitex which is incorporated herein by reference.
“Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, if any, through, for example, Salesforce.com.
“Permitted User” means those Users of the Customer for whom Customer has purchased a subscription under an Order and who are authorized to access and use the Subscription Services on the Customers behalf in accordance with this Agreement.
“Subscription Services” means Optitex’s proprietary software-as-a-service, accessible through the Internet, that provides for the ability to upload, share, view, or otherwise process files used during the design, development, and production of apparel or other fabric-based products.
“User” means any one of the Customer, its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates. “User Guide” means user’s guides, manuals, and other information provided or made available to Customer and the Subscription Services, as may be updated by Optitex from time to time.
2.1 Subject to the terms of this Agreement, Customer may purchase and Optitex will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order.
2.2 Services/Orders. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) Optitex or an Affiliate of Optitex; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “Optitex” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and Optitex will separately invoice the Customer named in the Order for the associated fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, Optitex will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity and up to the number of Permitted Users (subject to Section 3.4), (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order.
3.2 Optitex Subscription Services Support. Optitex will provide its current technical support services (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that Optitex uses subcontractors to provide portions of the Subscription Services.
3.4 Permitted Users. Without limiting Section 3.6, no individual other than a Permitted User may access or use the Subscription Service. The Customer must authorize at least one Permitted User per Order and may authorize any User to be a Permitted User. Additional Permitted Users may be added under the applicable Order and during the Term at the same pricing as that for the pre-existing Permitted Users thereunder, prorated for the remainder of the Term in effect at the time the additional Permitted Users are added. Customer will provide to Optitex the Permitted User’s name, e-mail and other information that Optitex reasonably requires in relation to the Permitted User. The Customer must procure each Permitted User’s compliance with this Agreement and any other reasonable condition notified by Optitex to the Customer. A breach of any term of the Agreement by a User is deemed to be a breach of the Agreement by the Customer.
3.5 Capacity.Subject to Customer’s compliance with this Agreement and the applicable Order, Customer’s Capacity of up to 1 TB of storage capacity for use with the Subscription Services is included. Additional cloud storage may be made available for purchase by Customer from Optitex pursuant to the execution of an Order. Capacity will be shared by all Permitted Users. Exceeding Capacity is prohibited and may prevent Customer (including its Permitted Users) from accessing or using cloud storage or the Subscription Services as intended.
3.6 Customer Responsibilities and Restrictions.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; or (x) use the Subscription Services in a manner that results in excessive use, bandwidth, or storage (beyond the Capacity).
4. FEES AND PAYMENT; TAXES.
4.1 Fees and Payments. All Orders will be considered final upon acceptance by Optitex and the fees payable for the Subscription Services and the payment period for such fees may be set forth in and paid in accordance with the Order. Unless otherwise set forth in an Order, all payments are due prior to Customers access to the Subscription Services. Fees shall be at Optitex’s then-standard rates at the time of invoice or, if applicable, as set forth in the Order. If Customer fails to pay any fees when due, Optitex shall be entitled, at its sole discretion, to: (i) suspend provision of the Subscription Services to Customer or a Permitted User until it fulfills all of its pending obligations; (ii) charge Customer an interest rate of 18% per annum or the maximum amount permitted by law; and/or (iii) terminate this Agreement and/or your access rights to the Subscription Services. If applicable, if Customer or a Permitted User exceeds the Capacity or number of Users using the Subscription Service exceeds the number of Permitted Users designated in the applicable Order, in addition to Optitex’s other remedies, Customer will be charged additional fees, which will be reflected in Customers invoice. Unless otherwise stated in an Order, all payments made under this Agreement shall be in United States dollars. Fees are non-refundable.
4.2 Taxes. All fees are exclusive of taxes, and Customer shall pay or reimburse Optitex for all taxes arising out of transactions contemplated by this Agreement. If Customer is required to withhold any tax for payments due, Customer shall gross its payments to Optitex so that Optitex receives sums due in full, free of any deductions. As reasonably requested, Customer will provide documentation to Optitex showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on Optitex’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. Customer hereby confirms that Optitex can rely on the name and address that Customer provides to Optitex when it agrees to the fees or in connection with Customer’s payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where Customer has established its business.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. Unless terminated earlier in accordance with this Section 5, this Agreement will begin on the Effective Date and will continue until the later of (a) the end of the trial period relating to the Free Trial Service and (b) the expiration or otherwise termination of the subscription period specified in all Orders (the “Term”). Subscriptions to the Subscription Services will automatically renew for additional terms equal to the expiring subscription term as set out in the applicable Order (as amended) unless otherwise specified by Optitex at the time of renewal.
5.2 Termination Rights.
(a) Termination for Convenience. Customer may terminate this Agreement by providing Optitex with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify Optitex of its intent to terminate by emailing Optitex at firstname.lastname@example.org.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for Optitex’s material breach, Optitex will refund the amount paid by Customer to Optitex for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, Optitex reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement including, without limitation, providing access to the Subscription Services to more Users than Permitted Users permitted under this Agreement. Further, Optitex may immediately suspend any and all access to the Subscription Services without any cure period if Optitex determines in good faith that Customer’s material breach of the Agreement will cause damage to Optitex, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to Optitex pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, Optitex will make the Customer Content available to Customer for retrieval in an industry standard format. After such 30-day period, Optitex shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, Optitex shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. Optitex will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then- current fees and charges, generally applicable to Optitex’s performance of such services, as agreed between the parties at such time.
6. SLA; LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. Optitex warrants to Customer that:
(a) Optitex will use commercially reasonable efforts to ensure the Subscription Service is available at least 99.0% of the time measured monthly. However, it is possible that on occasion the Subscription Service may be unavailable to permit maintenance or other development activity to take place, in the event of Force Majeure, or other circumstance beyond Optitex’s reasonable control, including the Customer or a Permitted Users use of the Subscription Services not in compliance with this Agreement, causes related to a third party hosted service, and the failure or other problem with any service or other matter not supplied by Optitex. Optitex will use reasonable efforts to publish on its website (https://optitex.com/) and/or notify Customer by email advance details of any unavailability (the “Service Level Agreement” or “SLA”).
(b) the Subscription Services (i) will perform in substantial accordance with the then-current User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and Optitex’s sole obligation for breach of the warranty in this Section 6.1(b) will be Optitex’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if Optitex cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination Optitex will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and Optitex’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing Optitex with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by Optitex, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to Optitex passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Third Parties. Through the use of hosting and web services and APIs, the Subscription Service interoperates with a range of third party services and features. Optitex does not make any warranty or representation on the availability of those services or features. Without limiting the previous sentence, if a third party service or feature provider ceases to provide that service or feature or ceases to make that service or feature available on reasonable terms, Optitex may cease to make available that service or feature to the Customer. To avoid doubt, if Optitex exercises its right to cease the availability of a third party service or feature, the Customer is not entitled to any refund, discount or other compensation.
6.3 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, OPTITEX, ITS AFFILIATES, THIRD PARTY LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. OPTITEX, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. Optitex, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Optitex owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Optitex reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to Optitex, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between Optitex and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. During the Term, Customer grants Optitex a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Subscription Services), non-transferable (except as described in Section 17) right to access and use the Customer Content to provide the Subscription Services to Customer and to monitor and improve the Subscription Services. At any time during the Term, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to Optitex and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Blind Data. Optitex may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by Optitex and may be used for any lawful business purpose without a duty of accounting to Customer. “Aggregated Data” means Customer Content that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity.
7.5 Suggestions. Customer agrees that Optitex shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any Optitex products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) IN THE 12-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by Optitex. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then Optitex will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If Optitex believes the Subscription Services may violate a right, then Optitex will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer’s right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against Optitex asserting that the (i) Customer Content, or (ii) or Customer’s use of the Subscription Services in violation of this Agreement violates that third- party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify Optitex for any damages finally awarded against Optitex based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY’S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY’S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS.
The Subscription Services and User Guides delivered to Customer under this Agreement are subject to export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside those jurisdictions. Customer shall abide by all applicable export control laws, rules, and regulations applicable to the Subscription Services and User Guides. Customer agrees that it is not located in or are not under the control of or a resident of any country, person, or entity prohibited to receive the Subscription Services or User Guides due to export restrictions and that Customer will not export, re-export, transfer, or permit the use of the Subscription Services or User Guides in whole or in part, to or in any of such countries or to any of such persons or entities.
11. GOVERNING LAW AND DISPUTE RESOLUTION.
Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, or, if the Customer is an individual resident in the United States, the Controversy shall be tried in either state or federal court located in New York, New York and the laws of the State of New York shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in New York, New York and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario shall apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in, or, if the Customer is an individual and is resident in, the Europe, Middle East (except Israel) or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens. If both parties to this Agreement are entities incorporated in, or if the Customer is an individual and is resident in Israel, the Controversy shall be tried in the courts located in Tel-Aviv, Israel and the laws of Israel shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts located in Tel-Aviv in Israel and waive all defenses based on forum non conveniens.
(iv) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then- applicable international rules of the American Arbitration Association and the substantive laws of the State of New York will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following Optitex contracting entities apply to this Agreement:
|Region||Contracting Entity||Address of Contracting Entity|
|United States, Canada and Latin America South (not a specified Central or South America country below)||Generation Digital Solutions Inc. dba Optitex||10275 West Higgins Rd., Suite 250 Rosemont, IL 60018 USA|
|Italy||Nedgraphics Italia Srl.||Via Manzoni 24, 22063 Cantù (Como), Italy Code for electronic invoices is SUBM70N|
|EMEA (Europe, Middle East (except Israel) and Africa)||Optitex Netherlands B.V.||Groenekanseweg 70, 3732AG De Bilt, The Netherlands|
|India||Vela Technologies India LLP (LLPIN: AAM-4215)||Smart Work Business Centre, 2nd floor, Global Technology Park, Tower – C, Outer Ring Road, Devarabeesanahalli, Bellandur, Bengaluru – 560 103, INDIA|
|S.E.A (Southeast Asia), New Zealand, Hong Kong, Taiwan, China, Japan, Korea||Shoplogix (Asia Pacific) Limited||Suite 2606, 26/F Two Chinachem Exchange Square 338 King’s Road|
|Any Region not covered above||Optitex Ltd.||13 Ha’Melacha St. Park Afeq Rosh Ha’Ayin 4809129, ISRAEL|
13 U.S. GOVERNMENT END USER RIGHTS.
This Section applies only to acquisitions of the commercial Subscription Service subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions.
14. DATA PROTECTION.
Each party shall comply with its respective obligations under applicable data protection laws. Each party shall maintain appropriate administrative, physical, technical and organizational measures that ensure an appropriate level of security for Confidential Information and Personal Data (as defined in the Data Processing Addendum). Expect with respect to Free Trial Services, to the extent Optitex and/or its Affiliates process Personal Data in the provision of the Subscription Services the Data Processing Addendum (as may be updated by Optitex if required by applicable law) and made available on https://optitex.com/dpa, which is hereby incorporated by reference, shall apply and the parties agree to comply with such terms. Customer is responsible for ensuring that the security of the Subscription Services is appropriate for its intended use and the storage, hosting, or processing of Personal Data. For purposes of the Standard Contractual Clauses attached to the Data Processing Addendum, when and as applicable, Customer and its Affiliates are each the data exporter, and Customer’s entering into this Agreement including an Order, and an applicable Affiliate’s signing of or entering into an Order, shall be treated as signing of the Standard Contractual Clauses and their Appendices.
Customer agrees that Optitex or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services or the number of Permitted Users, Optitex may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service or block access to the Subscription Service such that the number of Permitted Users conforms to the Order(s), as applicable. If, notwithstanding Optitex’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services or limits on Permitted Users, Customer will execute an Order for additional Capacity of such Subscription Services or additional Permitted Users, as applicable, promptly upon Optitex’s request.
Any general notifications regarding technical matters from Optitex to Customer will be sent to the Customer contact information stated in the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify Optitex of any change to the Customer contact details in writing, which may include via e-mail.
17. MISCELLANEOUS TERMS.
The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from Optitex and its licensors, if applicable (i.e., planned downtime notices, etc.). This Agreement, including the Orders constitutes the entire agreement between Customer and Optitex and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with Optitex’s licensors and Optitex’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both Optitex and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to Optitex. The assignee may not be a known direct competitor of Optitex. The successor entity or Affiliate must agree in writing with Optitex (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by Optitex and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than Optitex. Optitex is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.