IFS Enterprises LLC, d/b/a Operix (“Operix”) develops, manages, and supports certain software products and related services more specifically described in the applicable Order Schedule. These terms and conditions (“Terms & Conditions”) serve as a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term “You” or “Licensee”) and Operix with regard to the Services. You acknowledge and agree that orders for the Services may be placed directly through IFS Enterprises LLC, d/b/a Operix (“Operix”) develops, manages, and supports certain software products and related services more specifically described in the applicable Order Schedule. These terms and conditions (“Terms & Conditions”) serve as a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term “You” or “Licensee”) and Operix with regard to the Services. You acknowledge and agree that orders for the Services may be placed directly through Operix or with Sage (defined below), and in each case these Terms & Conditions shall be applicable.
PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE USING THE SERVICES BY DOWNLOADING, INSTALLING, ACCESSING, OR USING THE SERVICES, IN ANY FORM OR MEDIA, LICENSEE CONFIRMS THAT LICENSEE HAS READ AND UNDERSTANDS THESE TERMS & CONDITIONS AND THAT LICENSEE AGREES TO BE BOUND BY THESE TERMS & CONDITIONS. IF LICENSEE DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY
TO THESE TERM & CONDITIONS, LICENSEE SHOULD NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICES. LICENSEE CAN CONFIRM THAT LICENSEE UNDERSTANDS THESE TERMS & CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS BY SELECTING “I ACCEPT THE LICENSE AGREEMENT,” BELOW.
IF YOU ARE ENTERING INTO THESE TERMS & CONDITIONS ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY, GOVERNMENTAL ENTITY OR OTHER ENTITY (AN ” ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS & CONDITIONS. THE TERM “YOU” OR “LICENSEE” REFERENCED HEREIN REFERS TO: (1) THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY.
THE “EFFECTIVE DATE” FOR THESE TERMS & CONDITIONS IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE ORDER SCHEDULE OR THE FIRST DAY LICENSEE INSTALLS, USES OR OTHERWISE ACCESSES THE PRODUCT(S). Any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, these Terms & Conditions will not be binding on Operix, even if payment is accepted. Any conflict between the terms and conditions set forth in these Terms & Conditions and any Order Schedule or SOW shall be resolved in favor of this Agreement, unless the Order Schedule or SOW expressly states that it shall control. You agree that purchases hereunder are not contingent on the delivery of any future functionality or features.
Operix may revise these Terms & Conditions (and any linked documents referenced herein) from time to time and at Operix’s sole discretion; provided that such changes will not materially impact this these Terms & Conditions or its scope or reduce Operix’s obligations to You (“Material Changes”) during your current committed term to use the Product (instead, any such Material Changes will be effective as of Your next Renewal Date). Any such changes will be published on www.operix.com (“Website”). To the extent permitted by applicable law, Your continued use of the Services will be deemed acceptance by You of any such revisions. Otherwise, we shall provide You notice of such changes and request Your consent to the same.
1. Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
2. Content means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
3. Licensee Content means all Content made available by Licensee or its Users to Operix for use in connection with the Services.
4. Documentation means the documentation for the Hosted Service generally supplied by Operix to assist its customers in the use of the applicable Hosted Service, including user and system administrator guides and manuals and other written materials, including the software functional specifications. Documentation includes, without limitation, the Sage Service Operations Connector Prerequisites.
5. Employee means a full-time or part-time employee of Licensee.
6. Hosted Service means Operix’s proprietary software solution through which the Software is provided to You as a hosted offering as further described on Exhibit A attached hereto. For the avoidance of doubt, You shall only receive access to the specific Hosted Service described on the applicable Order Schedule.
7. Operix Content means all Content made available by Operix to Licensee in connection with Licensee’s use of the Services.
8. Order Schedule means each (i) Operix ordering document signed by duly authorized representatives of both parties which references this Agreement, or (ii) Sage ordering document signed by duly authorized representatives of both parties. The Order Schedule identifies the specific Services ordered by Licensee from Operix, sets forth the prices for such Services and contains other applicable terms and conditions. The order schedule may be an order form, invoice, or quotation, provided that it is signed by both parties.
9. Software means proprietary software products which may include “Sage Service Operations”, “Sage Field Operations”, “Operix” and “Tech Tool”. For the avoidance of doubt, only the Services specifically identified on your Order Schedule are licensed to You under these Terms & Conditions.
10. Professional Services means those integration, configuration, consulting and/or training services, if and as specified on an Order Schedule and/or on a SOW to be provided by Operix or Sage, as applicable.
11. Sage means Sage Software, Inc.
12. Services means both the Hosted Service and any Professional Services, each only as expressly set forth on the applicable Order Schedule and/or SOW.
13. SOW means a (i) Statement of Work referencing this Agreement and signed by both parties (meaning Licensee and either Operix or Sage) from time to time that sets forth Professional Services to be provided by Operix and certain other terms related thereto that are agreed between the parties; (ii) the Order Schedule may serve as the SOW if it references Professional Services, or (iii) an email from the Customer authorizing Operix to perform Professional Services at a specific rate.
14. Users mean individuals who are authorized by Licensee to use the Services, and, with respect to the Hosted Service, who have been supplied passwords by Licensee (or by Operix at Licensee’s request). Users consist of any employees of Licensee and its Affiliates and any independent contractor of Licensee or its Affiliates.
15. Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by Operix on behalf of Licensee and delivered to Licensee in the performance of Professional Services.
2. Hosted Service
1. Right to Use. Subject to these Terms & Conditions, and in consideration for the payment of fees set forth on the applicable Order Schedule, Operix hereby grants to Customer, solely during the term of the applicable Sales Order, a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Hosted Service solely for Licensee’s internal business purposes. This license is restricted to use by Licensee and its Users and does not include the right to use the Subscription Service on behalf of any third party. Licensee also agrees to be bound by any further restrictions set forth on the Order Schedule, including, without limitation, restrictions on number of Users. Licensee may make the Hosted Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and its Users and that Licensee is liable for any breach of the terms and conditions of this Agreement by any of its Affiliates and its Users. All rights not expressly granted to Licensee are reserved by Operix and its licensors. There are no implied rights. Licensee is responsible for procuring and maintaining the network connections that connect Licensee to the Hosted Service.
2. Users. Licensee shall authorize access to and assign unique passwords to the number of Users purchased by Licensee on the Order Schedule. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed, on a permanent (and not concurrent) basis. Licensee will be responsible for the confidentiality, security and use of User’s passwords. Licensee agrees to immediately notify Operix if Licensee becomes aware of any loss or theft or unauthorized use of any of Licensee’s passwords. Licensee is responsible for all activities conducted under its User logins and for its Users’ compliance with these Terms & Conditions and shall take all measures necessary to ensure compliance by all of its Users. Licensee shall be liable for any breach of these Terms & Conditions by any of its Users. In addition to Operix’s other remedies hereunder, Operix reserves the right upon notice to Licensee to suspend and/or terminate any User’s right to access the Hosted Service if such User has violated any of the restrictions contained in these Terms & Conditions.
3. Restrictions. Unauthorized use, resale or commercial exploitation of the Hosted Service in any way is expressly prohibited. Licensee shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Hosted Service, including the Operix Technology (defined below in Section 11), or access the Hosted Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Hosted Service. Licensee shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Hosted Service to any third-party. Licensee shall not use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Hosted Service. Neither Licensee nor its Users shall use the Hosted Service to: (a) send, upload or otherwise transmit any Licensee Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Licensee Content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Hosted Service or networks connected to the Hosted Service; (e) violate any applicable law or regulation or use, or allow the use of, the Hosted Services for any unfair or deceptive practices; or (f) act in a fraudulent, tortious, malicious, or negligent manner when using the Services.
4. Backup Policies. Licensee acknowledges and agrees that Licensee’s use of the Hosted Service is at the Licensee’s sole risk. Operix is not responsible for Licensee Content, files and data residing on Licensee’s account. Licensee agrees to take full responsibility for Licensee Content, files and data transferred to or created on Licensee’s account and to maintain all appropriate backups of files and data stored on Operix servers or network. Licensee further agrees that Operix has the right to periodically delete old access logs, or other data so as to maintain the reliability of the Hosted Service for all customers by preventing the servers from running out of disk space, slowing down due to excessive numbers of files, or incurring any other problems related to the storage of these old access logs, or other data files. Licensee agrees that Licensee shall be solely responsible for maintaining backups of any such Licensee Content, or other data that Licensee maintains on Operix servers. Operix may, at its option, maintain automated back-ups of data, but it is not obligated to do so. Licensee should not rely on their existence, availability, timeliness or completeness. Such backups, if made, will be created during normal operations and may exclude files and databases that are locked, in use, or otherwise made unavailable by the operating system or other factors. Operix shall have no liability to customer in the event all data is lost or destroyed. Licensee acknowledges and agrees that in the event restoration of data from backup is necessary (and possible), it may take several days to complete such restoration of data and resume operation of the service. Licensee acknowledges and agrees that restorations attempted from such internal backups may not be complete or error free. Operix reserves the right to suspend or terminate such backups without notice, included but not limited to server operation and performance requirements.
5. Modifications to Hosted Service. Operix may make modifications to the Hosted Service or particular components of the Hosted Service from time to time provided that such modifications do not materially degrade any functionality or features of the Hosted Service.
3. Professional Services
1. Professional Services. Professional Services are provided in accordance with and are subject to the provisions set forth in these Terms & Conditions and the applicable Order Schedule (or SOW). If Licensee requests Professional Services and there is no applicable rate set forth in the Order Schedule or SOW, such Professional Services shall be provided on a “time and materials” basis at Operix’s then-current Professional Services rates. Licensee acknowledges that if it requests Professional Services from Operix (via email, orally or otherwise) and Operix performs such Professional Services, Licensee shall be obligated to pay for such Professional Services, such Professional Services shall be performed pursuant to the terms of these Terms & Conditions and both parties shall be obligated to these Terms & Conditions with respect to such Professional Services.
2. Changes to Order Schedule/SOW. Either party may request a change to an Order Schedule or SOW, and for such purpose shall submit to the other party a written notice (“Change Request”) setting forth the requested change and the reason for such request. Within five (5) business days (or such other period of time as agreed by the parties) after the receipt of such Change Request, the parties shall discuss the necessity, desirability and/or acceptability of the Change Request. When and if both parties have agreed in writing upon the changes, and any resulting change in the estimated (or fixed) fees for the Services, the parties shall complete and execute a new or revised Order Schedule or SOW.
3. Staffing, Designated Contact and Cooperation. Operix shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that Operix shall be responsible for the performance of any such subcontractor. Licensee shall designate at least one employee with knowledge of Licensee’s business and Operix’s technology and Services as its primary contact to be available for communication with Operix in providing the Services. Licensee will cooperate with Operix, will provide Operix with accurate and complete information, will provide Operix with such assistance and access as Operix may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the Order Schedule or SOW, as the case may be. If Operix personnel are required to be present on a Licensee site, Licensee will provide adequate workspace and may provide reasonable worksite safety and security rules to which such personnel are to conform.
4. Work Product. Licensee will have a non-exclusive, non-transferable license to use any Work Product developed by Operix in the performance of the Professional Services and delivered to Licensee, upon Licensee’s payment in full of all amounts due hereunder, solely for Licensee’s internal use in conjunction with the Hosted Service.
4. Technical Support
1. As part of the Hosted Service, Operix shall provide technical support services to Licensee as follows:
– The Support Staff at Operix assists clients with requests using the following steps and procedures to track client interactions based on priority.
– Contacting Operix Technical Support Services – Phone: 855-229-5582. Email: firstname.lastname@example.org
– Standard Business Hours – Support Representatives answer incoming calls and emails and address cases open during standard business hours of: 8AM – 6PM Monday-Friday Eastern Daylight Time (exclusive of holidays) Calls or emails for application or system support purposes should be routed through designated Licensee contacts only. Doing so ensures prompt and efficient service while maintaining strict confidentiality of employee data. Licensee shall be assigned two (2) primary support contacts and two (2) back-up contacts. Additional contacts are allowed for IT and other technical communications from Operix support. These contacts are determined during the implementation phase of each project. Should these support contacts change, Operix Support Services must be notified in writing. This is a data security precaution strictly enforced by Operix.
Subject to the terms and conditions of these Terms & Conditions, Operix shall use commercially reasonable efforts to provide the Hosted Service twenty-four (24) hours a day, seven (7) days a week throughout the term of the applicable Order Schedule for the Hosted Service. Licensee agrees that from time to time the Hosted Service may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Operix may undertake from time to time; or (iii) causes beyond the control of Operix or which are not reasonably foreseeable by Operix, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Operix shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Licensee in the event of any scheduled Downtime. Operix shall have no obligation during performance of such operations to mirror Licensee Content on any other server or to transfer Licensee Content to any other server. Operix shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Hosted Service in connection with Downtime, whether scheduled or not.
5. Fees, Payment Terms
1. Fees. Licensee agrees to pay Sage or Operix for Services provided, and expenses incurred on the basis and at the rates specified in each Order Schedule or SOW. For the avoidance of doubt, Licensee is committing to pay for the subscription term set forth in the applicable Order Schedule or SOW. Licensee also commits to pay for all fees associated with Professional Services requested by Licensee, whether or not set forth a SOW or Order Schedule. Licensee is responsible for all travel and related expenses incurred by Operix as a result of travel requested by Licensee in the performance of Services. ALL FEES ARE NON-REFUNDABLE.
2. Disputed Charge. If Licensee disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Licensee shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Licensee delivers a written statement to Sage on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Licensee, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Licensee that are not in dispute have been paid as and when required under this Agreement.
3. Overdue Payments. Licensee agrees to pay a late charge of 1% per month (12% per annum), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not subject to a good faith dispute and not paid when due, from the date such payment was due until the date paid, plus all attorneys fees and expenses of collection. Furthermore, if Licensee’s account is 15 days or more overdue, in addition to any of its other rights or remedies, Operix reserves the right to suspend the Services provided to Licensee, without liability to Licensee, until such amounts are paid in full.
4. Taxes. Fees are exclusive of taxes. Licensee shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Operix and any taxes or obligations imposed upon Operix under federal, state and local wage laws. Taxes may be separately stated on the applicable invoice.
1. Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to an Affiliate, director, officer, employee, independent contractors, subcontractor, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Licensee further agrees that it shall not use the Hosted Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Hosted Services and will not publicly post any analysis or reviews of the Hosted Services without Operix’s prior written approval. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
7. Lmiited Warranty
1. Hosted Service Warranty. Operix warrants that during the term of any Order Schedule for the Hosted Service the Hosted Service will conform, in all material respects, with its Documentation. Operix does not warrant that it will be able to correct all reported defects or that use of the Hosted Service will be uninterrupted or error free. Operix makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Operix will, at no additional cost to Licensee, provide remedial services necessary to enable the Services to conform to the warranty. Licensee will provide Operix with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Licensee’s sole remedy for breach of the above warranty. Such warranty shall only apply if the Hosted Service has been utilized by Licensee in accordance with the Order Schedule, this Agreement and the Documentation.
2. Professional Services Warranty. Operix warrants that any Professional Services provided hereunder shall be provided in a competent manner in accordance with any specifications set forth in the Order Schedule or SOW (as the case may be), in all material respects. Operix further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable Order Schedule or SOW. If the Services are not performed as warranted or the Work Product does not so comply, then, upon Licensee’s written request, Operix shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Licensee. Such warranties and other obligations shall only survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be Licensee’s exclusive remedy and Operix’s sole liability for any such non-performance. If, however, after repeated efforts, Operix is unable to remedy such defect in any Work Product, then Licensee’s sole remedy and Operix’s entire liability shall be to refund to Licensee any amounts previously paid by Licensee for the particular deficient Professional Services or Work Product (it being acknowledged that the refunded portion shall only be for the actual deficient Professional Services or Work Product and not any other portion of the Professional Services or Work Product).
3. No Other Warranty. Operix DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE HOSTED SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 7.1 AND SECTION 7.2 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY Operix. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
8. Limitation of Liability
1. Consequential Damage Waiver. EXCEPT AS MAY ARISE OUT OF CUSTOMER’S BREACH OF SECTION 2.3 OR SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS AND COSTS, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
2. Limitation of Liability. THE TOTAL CUMULATIVE LIABILITY OF Operix AND ITS LICENSORS TO LICENSEE FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE SERVICES FEES PAID BY LICENSEE TO Operix UNDER THE ORDER SCHEDULE OR SOW FOR THE SERVICES WHICH FORM THE SUBJECT OF THE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The provisions of this Agreement allocate risks between the parties. The pricing set forth in each Order Schedule and SOW reflects this allocation of risk and the limitation of liability specified herein.
1. Term. These Terms & Conditions will commence on the Effective Date as set forth above and will continue in effect until otherwise terminated as set forth below. The term of each Order Schedule for the Hosted Service shall be set forth on the Order Schedule. Upon the expiration of the initial term of any Order Schedule or any renewal term, unless either party provides the other with written notice of its election not to renew such Order Schedule at least thirty (30) days prior to such renewal date, the Order Schedule will automatically renew, for a term equal in duration to the initial term of such Order Schedule at the rates specified on the Order Schedule. Operix reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Schedule upon providing Licensee written notice thereof (which notice may be provided by e-mail) at least 60 days prior to the then current renewal date.
2. Termination. Either party may terminate this Agreement or any Order Schedule or SOW (i) immediately in the event of a material breach of this Agreement or any such Order Schedule or SOW by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Schedule or SOW shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Schedules and SOWs.3. Suspension. Licensee agrees that Operix may suspend Licensee’s access to the Hosted Service if Operix reasonably concludes that: (i) Licensee is using the Hosted Service in violation of Section 2.
3; (ii) Licensee is engaged in denial of service attacks, spamming, or illegal activity, and/or (iii) use of the Hosted Service by Licensee is causing immediate, material and ongoing harm to Operix or any third party. Operix will use commercially reasonable efforts to notify Licensee of such suspension promptly (via phone or email), and to limit the suspension to the offending portion of the Hosted Service and resolve the issues causing the suspension of Hosted Service.
In addition to the foregoing, Operix also reserves the right, in its sole and absolute discretion, to suspend providing the Services and Licensee agrees that Operix may shut off and suspend Licensee’s access to the Hosted Service at any time, without having to terminate this Agreement or an Order Schedule, if Licensee is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Licensee shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. Licensee agrees that Operix shall not be liable to Licensee nor to any third party for any suspension of the Hosted Service under such circumstances as described in this Section 9.3.
4. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Schedule or SOW, Operix shall no longer provide the applicable Services to Licensee and Licensee shall cease and cause its Users to cease using the Services. Upon termination of this Agreement or any applicable Order Schedule for the Hosted Service by Operix due to Licensee’s uncured breach, in addition to any other remedies Operix may have for such breach at law or in equity, Licensee shall pay Operix for all fees that had accrued prior to the termination date and, as liquidated damages and not as a penalty, Licensee shall continue to pay Operix for all monthly service fees that would have continued to accrue through the end of the then current term of the Order Schedule had it not been so terminated. ALL FEES ARE NON-REFUNDABLE. Operix will not be obligated to restore access to the Services until Licensee has paid all fees owed to Operix. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession, subject to Section 9.5 below. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Schedule and SOW.
5. Handling of Licensee Content Upon Termination. Licensee agrees that following termination of Licensee’s account and/or use of the Hosted Service, Operix may immediately deactivate Licensee’s account and that following a reasonable period of not less than 30 days shall be entitled to delete Licensee’s account and all associated Licensee Content. If a copy of such Licensee Content is requested in writing prior to the conclusion of such 30 day period, Upon Operix shall make such Licensee Content available to Licensee in a mutually agreed upon format, subject to the payment of any fees for Services associated with the provision of such Licensee Content. Licensee further agrees that Operix shall not be liable to Licensee nor to any third party for any termination of Licensee access to the Hosted Service or deletion of Licensee Content, provided that Operix is in compliance with the terms of this Section 9.5.
10. Licensee Content
1. Licensee Content. Licensee is solely responsible for all Licensee Content, including the accuracy, integrity or quality of Licensee Content. Licensee shall be solely responsible for providing, updating, uploading and maintaining all Licensee Content. Licensee retains ownership of all right, title and interest in and to all Licensee Content. Licensee represents and warrants that Licensee has the right to provide Licensee Content to Operix for the purposes of performing the Services hereunder, and has received any and all licenses, consents and other permissions required by applicable law and regulation to provide such Licensee Content.
2. License. Licensee hereby grants to Operix a limited, worldwide, non-exclusive, royalty-free right to use, display, transmit, and distribute the Licensee Content (a) as necessary to provide the Hosted Service to Licensee, (b) to help operate, support, secure and improve the Services, and (c) to develop new services or functionality. This license includes the right for Operix to provide access to such Licensee Content to any Representatives as necessary to provide the Hosted Service to Licensee.
3. Aggregated Data. Licensee acknowledges and agrees that Operix shall have the right to copy, use, distribute, and display any information, analysis, statistics and other data generated by the Hosted Service (or derived from Licensee’s use of the Hosted Service), including compilation of aggregated statistics about the Hosted Service or online marketing for its own internal use and for use by its Representatives; provided, however, that Operix shall not publicly disclose or distribute any such data unless such data is in an aggregated form that would not permit a third party to identify Licensee or any of its Users.
4. Protection of Licensee Content. We will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. To the extent that Operix processes any Personal Data contained in the Licensee Content on Your behalf in the provision of the Services, and such Personal Data is subject to GDPR or CCPA (each as defined in the DPA) each party shall comply with the terms of the IFS Data Processing Addendum (“DPA”)
1. Ownership. Licensee acknowledges and agrees that as between Operix and Licensee, all right, title and interest in and to: (i) the Hosted Service, including the Operix Content, Software and all of Operix’s proprietary technology (including software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Licensee by Operix in providing the applicable Hosted Service; (ii) all derivatives, enhancements and modifications thereto; and (iii) with respect to both (i) and (ii), any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith; are and shall remain Operix’s or its licensors’ (where (i), (ii) and (iii) are collectively referred to as the “Operix Materials”). Operix in no way conveys any right or interest in the Operix Materials other than the limited license expressly set forth in these Terms & Conditions. The Operix Materials are works protected by copyright, trade secret, and other proprietary rights and laws. The Operix name, the Operix logo, and the product names associated with the Hosted Service are trademarks of Operix or third parties, and no right or license is granted to use them. Licensee shall not remove any Operix trademark or logo from the Hosted Service (without Operix’s consent and only upon the payment of additional fees to Operix).
2. Feedback. If You provide any ideas, proposals, feedback, improvements or other suggestions (collectively, “Suggestions”) to Operix for improvements to the Services or related products or services, You hereby grant Operix a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license that is sub-licensable and transferrable to such Suggestions and all intellectual property rights therein to fully exploit and distribute the Suggestions in connection with the Services or any related products and services.
1. Operix Indemnification. Subject to Section 12.3 below, Operix will indemnify, defend and hold Licensee harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Licensee alleging that the use of the Services or Work Product as permitted hereunder infringes any United States copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement, the Documentation or applicable law, (b) use of the Services or Work Product after Operix notifies Licensee to discontinue use because of an infringement claim, (c) any claim relating to any third party Content or Licensee Content, (d) modifications to the Services or Work Product made other than by Operix (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Work Product with software or equipment which was not provided by Operix, to the extent that Licensee’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Operix with Licensee’s custom requirements or specifications if and to the extent such compliance with Licensee’s custom requirements or specifications resulted in the infringement. If the Services or Work Product are held to infringe, Operix will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Licensee against such claim without cost to Licensee; (b) to replace the Services or Work Product with non-infringing Services or Work Product; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Schedule or SOW and refund to the Licensee any prepaid unused fees paid to Operix for the infringing Services or Work Product. The rights and remedies granted Licensee under this Section 12.1 state Operix’s entire liability, and Licensee’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
2. Licensee Indemnification. Subject to Section 12.3 below, Licensee shall indemnify, defend, and hold Operix harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Operix that arises out of or results from a claim by a third-party (i) relating to the Licensee Content or Operix’s permitted use thereof, or (ii) arising out of Licensee’s breach of Sections 2.
3 above or violation of any applicable law.3. Indemnification Procedure. The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
13. Google Maps
By using the Hosted Service or by accepting these Term & Conditions (whichever occurs first), you agree to be bound by the Google Terms.
14. BETA Versions
1. Beta Software. “Beta Software” means the Operix beta software and any related services, including any updates or upgrades, and any related documentation. If you execute an Order Schedule for Beta Software, then subject to the terms and conditions of this Agreement, Operix grants You a limited, non-exclusive, revocable, non-transferable, personal, non-sublicensable license to install and use the Beta Software, solely for testing and evaluation purposes during the Test Period (as defined below). The license granted herein is granted solely to You. You may not use or copy the Beta Software in whole or in part except as expressly provided in this Agreement. You acknowledge that the Beta Software and its structure, sequence, organization, and source code contain valuable trade secrets of Operix, its affiliates, and its licensors. The Beta Software and all information provided by Operix about the Beta Software is Confidential Information of Operix. You may not access or use any Beta Software unless you have executed an Order Schedule specifically authorizing such use.
2. Beta Feedback. You are encouraged to provide to Operix comments, criticisms, suggested improvements, and other feedback about the use, operation, functionality, and features of the Beta Software (collectively, the “Beta Feedback”). The Beta Feedback may include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features, the results of any and all benchmark or similar testing conducted within the Test Period, and any unusual, unplanned, or out-of-the-ordinary performance observed by You or your personnel. You agree that Operix has the right to fully exploit the Beta Feedback at its sole discretion, including incorporating all or some of the Feedback into Operix’s products, services, or Beta Software, all without notice to, payment to, or consent from You. This right is an unlimited, perpetual, fully paid-up, worldwide, non-exclusive, fully transferable, fully sublicensable, and irrevocable right to execute, reproduce, distribute, perform, display, modify, create derivative works of, make, have made, use, import, sell, offer to sell, and otherwise transfer the Feedback and to practice or have practiced any process or method involved in any use thereof.
3. No Warranty. Operix is not obligated to correct any bugs, defects, or errors in the Beta Software or otherwise support or maintain the Beta Software. Operix may terminate the Beta Software program at any time in its sole discretion, without liability to you. THE BETA SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. Operix HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE BETA SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE BETA SOFTWARE IS NOT INTENDED FOR ANY PRODUCTIVE USE OF ANY KIND, AND Operix HAS NO LIABILITY FOR ANY USE OUTSIDE OF THE TESTING ENVIRONMENT. Operix DOES NOT GUARANTEE THAT IT WILL MAKE A COMMERCIAL RELEASE OF A VERSION OF THE BETA SOFTWARE AVAILABLE. THE BETA SOFTWARE IS A PRE-RELEASE VERSION, AND MAY CONTAIN BUGS, ERRORS, OR OTHER PROBLEMS. YOUR USE OF THE BETA SOFTWARE IS ENTIRELY AT YOUR OWN RISK. Operix HAS NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE BETA SOFTWARE.
15. Mobile Applications
1. Mobile Application License. Operix grants you a non-transferable, non-exclusive license to download, install and use the Operix mobile application on a mobile device that you own or control, subject to the terms of these Terms & Conditions and any additional terms and conditions governing the use of the mobile application imposed by your mobile service provider. If there is a conflict between these Terms & Conditions and the terms imposed by your mobile service provider, the more restrictive provisions control.
2. Apple Devices. You acknowledge that your rights to access and use the Operix mobile application is between you and Operix and not with Apple Inc. or its affiliates (“Apple”) and that Apple has no responsibility for the Operix mobile application or its content. Your use of the Operix mobile application on Apple devices must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation to furnish any maintenance or support services for the Operix mobile application. If the Operix mobile application fails to meet the limited warranty set forth in these Terms & Conditions, you may notify Apple and Apple will, as your sole remedy for such failure, refund the purchase price paid to Apple for the Operix mobile application to the maximum extent permitted by applicable law. Apple will have no other obligation to you for breach of the warranty applicable to the Operix mobile application. Each party acknowledges that Apple is not responsible for addressing your claims or the claims of any third party relating to the Operix mobile application, including (1) any product liability claim; (2) any claim that the Operix mobile application fails to conform to any applicable legal or regulatory requirement; and (3) any claim arising under any consumer protection or similar legislation. Each party acknowledges that, in the event of a third party claim that the Operix mobile application or your use of the Operix mobile application infringes any third party’s intellectual property rights, Operix and not Apple is solely responsible for its investigation, defense, settlement and discharge to the extent required by this Agreement. Each party agrees that Apple and its subsidiaries are third party beneficiaries to this Agreement as it relates to your use of the Operix mobile application and that, upon your acceptance of this Agreement, Apple has the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions against you (with respect to the Operix mobile application) as a third party beneficiary.
16. General Provisions
1. Entire Agreement and Controlling Documents. These Terms & Conditions, including all Exhibits hereto and all Order Schedules and SOWs, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. These Terms & Conditions shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting these Term & Conditions in construing or interpreting the provisions hereof.
2. Assignment. These Terms & Conditions shall be binding upon and for the benefit of Operix, Licensee and their permitted successors and assigns. Either party may assign these Terms & Conditions and all Order Schedules to an Affiliate or as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in these Terms & Conditions, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, Licensee acknowledges that Operix may subcontract any or all of its obligations hereunder.
3. Governing Law; Jurisdiction. These Terms & Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the State of Massachusetts with respect to any actions for enforcement of or breach of these Terms & Conditions. By execution and delivery of these Terms & Conditions, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.
4. Headings. The headings to the sections of these Terms & Conditions are for ease of reference only and shall not affect the interpretation or construction of these Terms & Conditions.
5. Relationship of the Parties. Operix and Licensee are independent contractors, and nothing in these Terms & Conditions shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
6. Publicity. Licensee agrees that Operix may use Licensee’s name and may disclose that Licensee is a customer of the Operix Services in Operix advertising, press, promotion and similar public disclosures, including, but not limited to, at trade shows and similar events. In addition to the foregoing, Licensee hereby grants Operix a non-exclusive license to list Licensee’s name and display Licensee’s logo in the Licensee Section of Operix’s website. Operix may also publicly issue and distribute a “case study” and/or press release relating to this agreement and Operix’s Services performed on behalf of Licensee, provided that it first obtains Licensee’s prior written consent, such consent not to be unreasonably withheld or delayed. Licensee agrees to act as a “reference account” with respect to Operix’s marketing and promotional initiatives.
7. Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
8. Notices. Except where an alternative method of notice is expressly stated herein, any notice, approval, request, authorization, direction or other communication under these Terms & Conditions shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) via email to the individual set forth on the applicable Order Schedule or SOW (it is each party’s responsibility to provided updated email addresses) (ii) on the delivery date if delivered personally to the party to whom the same is directed; (iii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iv) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth on the applicable Order Schedule. Either party may change its address by giving written notice of such change to the other party.
9. Counterpart and Facsimile Execution. These Terms & Conditions may be executed in counterparts and delivered by email in PDF format, or facsimile, each of which when so executed and delivered (including delivery by facsimile) shall be deemed an original, and all of which together shall constitute one and the same agreement.
10. Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under these Terms & Conditions will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
11. Audit. At Operix’s written request and no more than once every twelve (12) months, Licensee shall provide Operix with a signed certification verifying that the Hosted Service is being used pursuant to the provisions of this Agreement. Operix may perform an audit of Licensee’s use of the Hosted Service and Licensee’s compliance with the provisions of this Agreement. Any such audit shall be made at Operix’s expense and shall occur during the Licensee’s normal business hours and no more than once per six month period.