Terms of Service
Last updated: September 10, 2020
ShareDesk Global, Inc. d/b/a Optix (“Optix”) provides a software as a service technology platform (“Platform”) that enables coworking businesses and flexible office space providers with tools to manage their workplace in the Platform (“Service”). Access to the Platform and the Services are provided through Optix’s website at https://www.optixapp.com (the “Website”) and the Optix mobile app (“App”). This Agreement applies to anyone signing up to create an account in order to access and use the Services provided under the terms of this Agreement and, to the extent applicable, users who simply view the content on or available through the Website or App (“You” / “Administrator”)
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY EXECUTING A SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT (“SUBSCRIPTION FORM”), YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
CAPITALISED TERMS USED IN THIS AGREEMENT ARE DEFINED IN SECTION 14.
1. THE SERVICE.
1.1. Who the Service is for. The Service has been created for use by:
i. Entities (“Administrators”) managing a place of work (“Workplace”), whether as a coworking business and/or flexible office space provider with its their own staff, employees, contractors and sub-contractors; and
ii. Individuals (“Users”) who work in or otherwise use those Workplaces, whether as clients, staff, employees, contractors, tenants or otherwise.
1.2. The Service for Administrators. The Service may be used by Administrators for the purposes more particularly described in the Website from time to time, and the scope for the Services that may be used by Administrators will depend on the subscription selected by the Administrator in the accepted Subscription Form. Subject to the terms set out in the applicable Subscription Form, such subscription may:
i. Include the branding of the App in the Administrator’s organization;
ii. Include release on the Apple App store and Google Play store under the name of the Administrator’s organization – for this purpose an Administrator may be required to register for its own developer account on such stores, in which case it shall be required to register Optix as an authorized developer or equivalent, and grant Optix such access to enable Optix to release the white-labeled app on such stores on the Administrator’s behalf or as otherwise agreed between Optix and Administrator under the applicable Subscription Form;
iii. Allow for integration of the Service with supported platforms (such as platforms providing calendars, payment gateways, CRM platforms, access control systems, accounting software, messaging and other services), as more fully detailed below in section 4;
iv. Allow for the collection and analysis of patterns of usage of the Administrator’s Workplace by Users;
iv. Enable the booking of, and payment for, resources within the Workplace by Users;
v. Enable purchase of, and payment for, services and products offered by Administrator or other authorized third parties (if applicable) through the Service;
vi. Allow for the managed scheduling and booking of resources; and
vii. Such other service modules, tools, or product options may be selected or specified in the accepted Subscription Form, or enabled by the Administrator in the Website and Platform.
viii. Enable administration of Users accounts, records, services and subscriptions, and billing.
1.3. The Service for Users. The functionality of the Service will be determined by the Administrator of each Workplace for which such User is registered. Typically, the Service may be used by Users to:
i. “Check-in” to any Workplace where they are registered;
ii. Reserve resources within those Workplaces, including any meeting rooms, desks or other resources;
iii. Purchase products and services offered by Administrator or other authorized third parties (if applicable) through the Service;
iv. Where applicable, pay for such usage and purchases, or register such usage and purchases against an account number;
v. Communicate with other Users in a Workplace;
vi. Locate resources and other Users in a Workplace who are registered in the App;
vii. Subscribe to, and pay for, services and plans offered by the Administrator; and
viii. Such other functionality as may have been subscribed for or enabled by the Administrator of that Workplace.
1.5. Use of hardware. Effective implementation and use of aspects of the Service may include the installation and use by Administrators in Workplaces of certain hardware (including without limitation Bluetooth beacons, access control systems, WiFi devices, and internet-of-things enabled devices or such other technology as may be recommended by Optix or other third parties from time to time). Use of any hardware provide by Optix shall be subject to the provisions of section 6 below.
i. Effectively managing shared resources within a Workplace;
ii. Analyzing usage of resources within the Workplace;
iii. Identifying whether Users are in the Workplace, and which Users are in the Workplace; and
iv. Allowing for communication between multiple Users and between Users and Administrators in respect of use of the Workplace
v. Using aggregated data to create benchmarks and industry reports to support the community.
Administrator will have the ability to set the extent of information that is requested for collection from Users, and Administrators may determine whether or not Users can provide anonymous date through the App. Use of an App by Users cannot be enforced by Optix, and is a matter for Administrator to administer.
2. Subscription to the Service.
2.2. Custom Services. Through the capabilities of the Service, Administrators will be able to manage their Administrator experience management and other features offered as part of the Services. Initial setup by Optix will include branding the white-labeled App in the Administrator’s colors and brand. Administrator grants Optix a non-exclusive, non-transferable, royalty-free, license to use their brand, logo and any other material provided by Administrator solely for the purpose of customizing the appearance of the Administrator’s white-labeled App on behalf of Administrator.
2.3. Trial License. Administrators may use certain specified modules in the Platform on a trial, evaluation basis for the period of time indicated at the time of selecting Administrators’ subscription plan. For greater certainty, trials are at the discretion of Optix and Optix reserves the right to cancel or terminate a trial immediately at any time on provision of written notice to You. Optix hereby grants to Administrator and Administrator hereby accepts a non-exclusive, non-transferable, royalty-free, license, during the trial evaluation period, to use the Service for evaluation purposes only, subject to the terms and conditions of this Agreement. Optix shall provide to Administrator without charge, reasonable email support requested by Administrator for the trial evaluation period in connection with the use and operation of the Service.
2.4. Commercial License. Subject to submission and acceptance of a Subscription Form and payment of the applicable Fees, Optix hereby grants to Administrator and, to the extent authorized by Administrators, Users a non-exclusive, non-transferable internal license to use and access the Platform and user interface for the purpose of using the Service during the Term. Administrator shall be entitled to use the modules provided in the subscription plan selected and purchased by Administrator. On creation of your account, if you are an Administrator you will be able to create your own login details enabling direct access to Services for multiple levels of access by Administrator’s permitted users. Administrator will have the ability to trial, subscribe, suspend and unsubscribe from modules (both paid and free modules depending on Administrator’s subscriptions) of the Service.
2.5. License Restrictions. All software provided is licensed; not sold. You shall use the Services (including any Code, as defined below, if you are granted access to such Code) solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service or any Code available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, copy, re-use, re-create or create derivative works based on the Service or any software or code (whether compiled, object code, source code or otherwise) provided to you or uploaded to any application store on your behalf (together, the “Code”) except to the extent expressly agreed upon in writing by Optix or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services (c) access or use the Services or any Code in order to (i) build a competitive product or Services; or (ii) copy any ideas, features, functions or graphics of the Service. Code is only made available to Administrators for the purpose of their use of the Service and release of the white-labeled App on the applicable application store – no further rights are granted to any party in respect of the Code, and any other use is strictly prohibited. Any further restrictions set out in this Agreement in respect of the Services shall, for the avoidance of doubt, include the same restrictions on the use of the Code or any of it.
2.6. Restrictions on Use of the Services. You shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass Optix’s network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the Optix Technology or modify, alter, or deface any of the trademarks, servicemarks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to You.
2.7. Lawful purposes. You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Your country, including applicable rules that govern the export or import of software and laws relating to collection and use of personal information. You agree to use the Services solely for lawful purposes only. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website), (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of Optix or any third party through your use of the Service.
2.8. Third Party Software. The technology underlying the Service may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Optix Technology falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of account access.
2.9. Pilot. Optix may from time to time agree to license the Services to Administrators on a pilot basis (a “Pilot”), where expressly provided for in the applicable Subscription Form. In such case: (i) the Subscription Form will state the duration of such Pilot (the “Pilot Period”); (ii) no fees will apply, except for any Pilot use fee (“Pilot Use Fee”) specified in that Subscription Form, which Pilot Use Fees shall be non-refundable; (iii) the Services are provided “AS IS” and no warranty obligations of Optix will apply for the duration of the Pilot Period, and (iv) Administrator may terminate this Agreement and all of its rights hereunder by providing Optix written notice thereof no less than 10 days prior to the end of the Pilot Period; otherwise, this Agreement shall continue in effect for the remainder of the Initial Service Term and any Renewal Term (subject to earlier termination as provided in the Agreement).
3. SERVICE, SUPPORT AND MAINTENANCE TERMS.
3.1. Provision of Service. Conditioned on the terms and conditions of this Agreement and payment of the Fees, Optix shall make the Service available to Administrator and its authorized Users during the term of the Administrator’s subscription.
3.2. Service Responsibilities. The Service has built in help features to assist Administrator in troubleshooting and resolving problems encountered while using the Service. Additional support services may be purchased directly from Optix by a separate agreement.
3.3. Security. Optix shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Administrator Data.
3.4. Availability. Optix shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Optix’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Optix employees), or Internet Services provider failures or delays. Optix will provide updates and upgrades to the technology underlying the Website from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Optix platform
3.5. Incremental Services. From time to time, additional Optix or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Optix to Administrator (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Administrator for additional fees in accordance with any additional terms and conditions specified by Optix.
3.6. Service Limitations. The Service is not a back-up service and accordingly Optix will not be responsible for any lost data due to server crashes or other events outside Optix’s reasonable control. However, Optix maintains backup of data on its servers to minimize the impact of any server crashes.
4. API, LINKS & THIRD-PARTY WEBSITES AND INTEGRATIONS.
5. PAYMENTS THROUGH THE SERVICE.
5.1. Payment Solutions. The Service may include access to a payment solution, which assists Administrators with accepting and processing payments from Users, and which is provided by one of Optix’s third party service providers, such as Stripe or other payment processing services or platforms, on behalf of Optix. This service is made available to Administrators in good standing, and at the sole discretion of Optix. Optix reserves the right to collect certain additional information from Administrators in order to provide this service. Payment fees are set forth on the Website or as otherwise agreed from time to time. We reserve the right to revise our Fees at any time, subject to a fourteen (14) day notice period to you.
5.2. Payment Services Features. If you register for Optix Payments, Optix Payments will be able to process credit card or ACH payments through your Optix account, process full credit card and ACH payment refunds, and allow your Users to process payment via email. Optix Payments will also store and manage User credit cards, permit you to view transactions, deliver automated receipts, and receive notification of payment disputes.
5.3. THIRD PARTY PAYMENT SERVICE AGREEMENTS. IN ORDER TO USE THE PAYMENTS SERVICE, YOU MAY BE REQUIRED TO FIRST AGREE TO THE APPLICABLE THIRD PARTY CONNECTED ACCOUNT AGREEMENT, SERVICES AGREEMENT AND OTHER SIMILAR AGREEMENTS (“THIRD PARTY PAYMENT SERVICE AGREEMENTS”). THESE INCLUDE WIHTOU LIMITATION THE AGREEMENTS APPLICABLE TO STRIPE ACCOUNTS, WHICH YOU CAN REVIEW HERE: HTTPS://STRIPE.COM/CA/CONNECT-ACCOUNT/LEGAL, AND WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS OF SERVICE. BY ORDERING OR REGISTERING FOR OPTIX PAYMENTS, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE READ THE APPLICABLE THRID PARTY AGREEMENTS AND AGREE TO BE BOUND BY THEIR TERMS.
5.4. Accuracy of Information. As between You and Optix, you are responsible for all the information you provide in connection with registering for, and using the Payments features of the Services. You hereby represent and warrant that you are providing true, accurate, and complete information to Optix, and shall fully indemnify Optix for any losses, costs, expenses incurred by Optix or any third party arising as a result of your failure to provide accurate, timely and complete information.
5.5. No Liability for Third Party Services. The Third Party Payment Service Agreements are between the applicable third party payment service provider and You, and Optix shall not have any liability or responsibility for any breach of such Third Party Payment Service Agreements, or any losses, damages, expenses costs or other injuries incurred by You in connection with such agreements.
5.6. User Authorization. If you subscribe to Payments, You hereby authorize Optix to collect certain payment information and data (including account and transaction data, and certain personal information about your Users), and to store, use and process such information data for the purposes of providing the Payments service.
5.7. User Covenants. You hereby covenant, represent and warrant that you will not use the Payments for any illegal, deceptive or fraudulent activity, including for any illegal businesses, including, without limitation, the Stripe Prohibited Business list, found here: https://stripe.com/legal/restricted-businesses, or any similar list provided by any other payment service provider such as the Payment Gateway providers made available by Spreedly: https://www.spreedly.com/connections. Optix hereby reserves the right, in its sole discretion, at any time, to suspend or terminate Your account if We have a good faith reason to believe You or any User has engaged in any fraudulent or illegal activities, or are engaging in prohibited business activity, and to provide any relevant information to the applicable authorities in connection with any investigation of the same.
5.8. Payment Disputes. All payment disputes between Administrators and Users whether such payment was made or was to be made through Optix Payments or otherwise, are solely between Administrators and such Users. Optix shall not be liable or responsible in any way for any payment dispute between Administrators, Users and/or any third party that uses the Optix Payments feature to process payments via your subscription for the Service. You hereby agree to indemnify, defend and hold Optix harmless for any costs, damages, claims, losses, expenses, liabilities incurred by Optix in connection with any payment dispute arising between You and any Administrator, User or other third party.
5.9. Optix limitation of Liability. Because the Payments features are provided and hosted by third party service providers, we are not responsible for, and expressly disclaim all direct and indirect, incidental, consequential, punitive, exemplary, special or other damages in connection with (i) any technical issues, errors, unavailability or failures, losses, damages, loss of data, lost profits or other losses or claims originating from or arising in connection with the third party payment provider services; (ii) any unauthorized access, hacking, tampering with or to your account or the third party payment provider services by third parties; or (iii) any software, bugs, viruses, Trojan horses, or other harmful and malicious code that may be transmitted via the third party payment provider services. In certain circumstances third party payment providers may withhold or delay processing transfers and transactions and Optix shall not be responsible in any way for any such action taken by third party payment providers.
6.1. If you are an Administrator, Optix will provide you with the hardware set out in the subscription form (such as Bluetooth beacons) that are necessary for use in connection with the Service (the “Hardware”), or you can purchase your own Hardware directly or through third party providers and configure it to operate with the Platform. During the Term, Administrator is responsible for safe keeping, maintenance, operation and the ongoing costs associated with the Hardware. Administrator acknowledges and agrees that the Hardware must be installed, operated and maintained in accordance with the specifications as communicated by Optix to you from time to time. ALL HARDWARE PROVIDED BY OPTIX IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; OPTIX DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE HARDWARE IT PROVIDES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. OPTIX FURTHER DOES NOT REPRESENT OR WARRANT THAT THE HARDWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES OPTIX WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
7. PROPRIETARY RIGHTS AND DATA TERMS.
7.1. Exclusive Ownership. Except for the rights and licenses granted in this Agreement, You acknowledge and agree that any and all intellectual property rights to or arising from the software and technology used to provide the Website and Service are and shall remain the exclusive property of Optix and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, You. You are only entitled to the limited use of the intellectual property rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with Optix’s intellectual property rights. Any unauthorized use of Optix ‘s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
7.3. Content License. You hereby grant Optix a perpetual, worldwide, royalty-free, and non-exclusive license to access Administrator Data in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) create Pattern Data. Together Sections 7.3(i) and (ii) constitute the “Content License”). You understand that Optix , in performing the required technical steps to provide the Services, may (a) transmit or distribute Administrator Data over various public or private networks and in various media; and (b) make such changes to Administrator Data as are necessary to conform and adapt that Administrator Data to the technical requirements of connecting networks, devices, Services or media. You confirm and warrant to Optix that you have all the rights, power and authority necessary to grant the above Content License and that use of the Content in the manner contemplated will not breach the rights of any third party. You further understand that we may share Administrator Data (with any personally identifiable information anonymized) to our third party partners from time to time.
7.4. Content Responsibilities. Administrator is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to Optix for Optix to transmit, host and store. For greater certainty, Administrator shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Administrator Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Optix promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
7.5. Suggestions. Optix shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Administrator Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
8.2. Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
8.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8.4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
9. TERM AND TERMINATION.
9.1. Services Period and Renewals. Where you are a User, the term of your Susbcription shall be from the date of creation of your account until the date that you terminate your account, unless otherwise terminated in accordance with this section. If you are an Administrator, the duration of your subscription to the Service (“Subscription Term”) shall be as set out it the applicable Subscription Form. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term. You may update your subscription preferences at any time through Your account.
9.2. Termination by Administrator. Without limiting section 9.1, You may terminate the Service with effect from the end of any current Term by giving not less than 30 days advance written notice. Termination of the Services will not entitle you to a refund of any amounts prepaid for the Services.
9.4. Effect of Termination. Upon termination of this Agreement, the Services shall terminate and Optix will terminate Your account thirty (30) days after a failure to renew your subscription, if You have closed your account or if this Agreement is terminated for any other reason. Optix will not be liable in respect of any damage caused by the termination of this Agreement or closure of your account.
10. PAYMENT TERMS.
10.1. Fees. Services are purchased by Administrators for subscription terms with payment for the specific periods being due and payable in advance, as set out during the subscription process. Users are not charged any Fees by Optix, but Administrator may use the Service to process and monitor fees that may be charged by Administrator to User. Optix reserves the rights to change its Fees by proving written notice to you by email at least thirty (30) days ahead of such change. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Professional Services may be available on a time and materials or fixed or variable quote basis as agreed with Optix in an order form or quotation provided by Optix to You.
10.2. Payment & Charges. Your access to and use of the Services is subject to Your payment of the applicable fees due for the Services selected by You (“Fees”) set out on the Website and all other applicable amounts, charges and taxes indicated to You when You purchase Services (or otherwise notified to You by Optix from time to time) when you use the Service or noted on Your invoice and viewable in Your account profile. Unless otherwise stated on the Invoice, all invoiced amounts are due upon receipt. If you pay by credit card, payment of such invoice will be processed immediately using the credit card on file for You. Receipts for purchased Services will be delivered to You electronically. You shall: (i) keep the billing, credit card (if applicable) and payment information You provide to Optix or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, we may suspend the Services; (ii) if you pay by credit card, promptly advise Optix if Your credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by Optix caused by Your failure to provide Optix with up to date billing information. To offset its additional processing costs, Optix may charge You for administrative charges as set from time to time for administrative or account activities, including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You shall pay all such charges.
If Your account is fourteen (14) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Optix reserves the right to suspend Your access to the applicable Service (and any related services) without liability to You until such amounts are paid in full. Optix also reserves the right to suspend Your access to the Services without liability to You if Your use of the Services is in violation of this agreement.
10.3. Taxes. You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase or use of the Services. To the extent Optix is required to collect such taxes, the applicable tax will be added to Your billing account.
10.4. Transaction Processing. Optix will cause transactions in respect of Your purchase of Services to be processed, and applicable fees owing by You to be collected. All subscriptions will automatically renew and the relevant fees will be processed and charged to You in full unless You notify Optix at least thirty (30) days in advance of the anniversary of a renewal period that you wish to discontinue the Services. Recurring payments for periodic subscriptions are processed on the account anniversary date for any subscriptions.
10.5. Pre-authorized Payment. By providing a credit card to Optix as part of your account set-up for pre-authorized payments, You authorize Optix to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes Optix’s good and sufficient authority for so doing. If Your pre-authorized payment method fails, Optix will provide notification to you of payment failure. If you fail to rectify the payment failure within 10 days of written notice, Optix may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. If you have not paid applicable fees within 30 days of the due date, Optix will automatically terminate your account and all Administrator Data from our servers. You are solely responsible for all charges incurred under Your account by You or third-parties.
11. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
11.1. Updates to Agreement. Optix reserves the right to modify this Agreement by providing a copy of the revised Agreement to you not less than 30 days prior to the end of the the-current term as part of the renewal of the Term. The revised Agreement shall become effective on any agreement to extend the Term in accordance with section 9.1.
11.2. Changes to Optix Technology. Optix may alter, update or upgrade the Optix Technology from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
11.3. Changes to Fees and Services. Optix may change the Services, any Services fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to You by posting the change on the Website, sending notice via an email to the email address You provide on registration, Your invoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate the Services with effect from the end of the then-current Term. Your continued access to and use of the Services after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Services unless You terminate in accordance with Section 9.2.
12. LIABILITY PROVISIONS.
12.1. NO WARRANTIES. OPTIX CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE, SERVICE AND ALL OPTIX TECHNOLOGY ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; OPTIX DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. OPTIX FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OPTIX TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES OPTIX WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. OPTIX CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION OBTAINED FROM THE SERVICE AND DOES NOT ACCEPT ANY RESPONSIBILITY FOR ANY DECISION MADE BY YOU ON THE BASIS OF ANY INFORMATION OR DATA PROVIDED BY THE SERVICE.
12.2. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY OPTIX (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
12.3. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF OPTIX (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY OPTIX (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO OPTIX FOR THE SERVICES COMPONENT GIVING RISE TO THE CLAIM.
12.4. THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER OPTIX NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
13.1. Administrator Indemnity. You agree on demand to indemnify, defend and hold Optix, its affiliates and Optix staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party (including without limitation the rights of any User, whether in respect of their rights under applicable privacy legislation or otherwise), (c) misuse of the Services, or (d) violation or breach of any law, regulation or guideline. The provisions of Section 12.2 apply to this Section 13.1.
13.2. Optix Indemnity. Optix shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such claim; provided, that You (a) promptly give Optix written notice of the claim; (b) give Optix sole control of the defense and settlement of the claim; and (c) provide to Optix all reasonable assistance, at Optix ‘s expense.
“Administrator Data” has the meaning given in Section 7.2;
“Documentation” means “how to” user guides and reference materials on the Website and App for the Service;
“Fees” means the applicable subscription fees payable by Administrator to Optix for the right to receive access to the Service, all as further described on the Website and in the Documentation;
“Intellectual Property” means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing rights;
“Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, mobility patterns, geolocation data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Administrator or its Users and is data which does not relate to a specific Administrator’s business (including data relating to a specific Administrator’s locations that receive the Services).
“Service” means the core Optix Software as a Service (SaaS) offering made available on a subscription-basis through Optix’s proprietary SaaS technology and platform. The Service includes access to core modules and optional modules and features made available by Optix from time to time;
“Subscription Form” means a subscription form for Administrators to the Service as published by Optix from time to time;
“Term” has the meaning given in Section 9.16.1;
“Third Party Software” has the meaning given in Section 2.8; and
“Website” means optixapp.com or such other URL as indicated by Optix from time to time where information and access to the Service is available.
15. GENERAL TERMS.
15.1. Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
15.2. Administrator Services. For assistance with questions regarding this Agreement or the Services, if You have other enquiries, or if You require further assistance regarding use of the Services provided by us, please contact us using the contact details located here: https://login.optixapp.com/
15.3. Logos. Optix may refer to You in Optix ’s Administrator list and may use Your corporate name and logo for this purpose. For the avoidance of doubt, Optix will not use Your name, logo, any other trademark or trade-name of Yours for any other purposes without Your prior consent.
15.4. Third Party Relationships. Optix or its business partners may present Services offerings, advertisements or promotional materials via the Services. Your dealings with, or participation in promotions of any third-party business partners via the Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that offering, advertisement or promotion. You agree that Optix is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
15.5. Third-party Services. The Services may present links to third-party Web sites or third-party Services not owned or operated by us. In addition, You or third parties may also provide additional functionality through applications that connect to our services through our API (“Third Party Apps”). We are not responsible for any aspect these third-party sites, Third Party Apps or third party services, including without limitation their functionality, availability, content or access to or use of your data that you may share with them. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site, Third Party Apps or third party services or goods or services available through any such third-party sites, apps or services.
15.6. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Optix with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
15.7. Severability & Waiver. Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If Optix does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
15.8. Assignment. You are not allowed to assign this Agreement or any rights hereunder without the prior written consent of Optix, such consent not to be unreasonably withheld. Optix is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
15.9. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Your current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of British Columbia, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.