Last revised: 17th Feb 2022
“Your”, “You” and “Customer” are used interchangeably throughout the Agreement and have the same meaning.
Your use of the Services, defined below, is subject to the terms of this Agreement unless a separate Service Agreement is or has been entered into by the parties, in which case that agreement shall apply to your use of the Services.
By accessing or using Optimon Platform, or by clicking on the checkbox at the Website, that demonstrates acceptance of this Agreement, you are agreeing to the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, then you represent and agree that you have the legal authority to bind that entity to this Agreement. If you do not accept the terms of this Agreement, then you cannot use the Services.
1.1 “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means direct or indirect ownership of more than 50% of the voting interests of the entity.
1.2 “Services” means the services offered by Optimon Platform through the web or at Website via the login link at Optimon Platform and/or the Website and that are purchased by Customer and includes any applications, extensions, scripts, and features (the “Applications”), if any, made available or provided to you by Optimon.
1.3 “Data” means all data and information transmitted to the Optimon Platform by Customer or processed by Optimon Platform and Applications on Customer’s behalf.
1.4 “Order” means (i) an ordering document for Services, Support Services, and/or any professional advisory and training services, agreed upon by the parties and referencing this Agreement, or (ii) the Services(s) selected and activated by Customer via the Website, including any selected Support Services.
1.5 “Support Services” means the applicable support and maintenance service that Customer purchases for the Services, as may be more fully described in the Order and this Agreement.
1.6 “User” means any person that Customer allows access to or use of the Services, and may include Customer’s employees, contractors, service providers, and other third parties that use the Services in connection with Customer’s own business operations.
1.7 “Website” means https://optimon.io/ and any other subdomains of it (e.g. subdomain.optimon.io, etc.), intended to provide you with information about Optimon and its products, to enable you to purchase a subscription to the Optimon Platform and provide subscribers to access the Optimon Platform and/or download the Applications, if any.
- OPTIMON SERVICES
2.1 Generally. Optimon will make the Services available to Customer for access and use solely for Customer’s own business operations and in accordance with the terms of this Agreement. The Services are personal for the Users and non-transferable or assignable to any third parties. Customer is responsible for Users’ compliance with this Agreement. No other use of the Optimon Platform not specified in these Terms, shall be permitted.
2.2 Registration. Customer must register and set up an authorized account, by self-registration or in an orderly registration by Optimon, to use the Services. Customer must keep the registration information accurate and complete. Customer is responsible for the security of its User IDs and passwords, that shall be provided to you by Optimon for each User, and for the use of its accounts and will immediately notify Optimon of any unauthorized use.
2.3 Usage Data. Optimon may from time to time use and process data about Customer’s use of the products and services for the purpose of creating statistics and analytics data. Optimon may use such data for its own internal business purposes, including to maintain and improve its products and services and to monitor and analyze its activities in connection with the performance of such services.
- ACCEPTABLE USE
3.1 General Restrictions and Responsibilities. Customer shall not resell, sublicense, rent or lease the Services, or otherwise make it available to anyone other than its Users. Customer shall not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device. Customer shall not make network connections to any users, hosts, or networks unless Customer has permission to communicate with them, and may not use manual or electronic means to avoid any use limitations placed on the Services, such as access and storage restrictions. Optimon may, but has no obligation to (a) investigate any violation of this provision or misuse of the Services, or (b) remove any content, or disable access to any resource, that violates the foregoing.
3.2 Data Restrictions and Responsibilities. Customer is solely responsible for (i) the legality of Data, (ii) ensuring compliance with all privacy laws applicable to the collection and provision of Data, (iii) Customer’s configuration and use of the Services, and (iv) taking appropriate action to securely transmit and backup Data, which may include use of encryption to protect Data from unauthorized access. Customer is responsible for communicating with the Services through encrypted and authenticated connections, as may be required by Optimon, and for transmitting all Data using such security methods.
- PRIVACY AND SECURITY.
4.1 Unless a separate data processing agreement has been entered into by the parties, each party shall comply with Optimon Data Security Addendum located at https://optimon.io/data-security-addendum (the “Security Addendum”).
4.2 Optimon will use commercially reasonable administrative, physical and technical safeguards designed to prevent unauthorized access, use or disclosure of Data, as more fully described in the Security Addendum.
4.3 Optimon will not access any Data except as necessary to provide the Services or Support Services, to enforce the provisions of this Agreement, or for a Permitted Disclosure (as defined in section 8.1).
4.4 Customer acknowledges that the content of the Security Addendum is subject to technical progress and development and that Optimon may update or modify the Security Addendum from time to time; provided, however, that such updates and modifications will not result in the degradation of the overall security of the Services purchased by Customer.
- OPTIMON SOFTWARE
5.1 License. In connection with Customer’s use of the Services, Optimon may provide to Customer certain of its proprietary software (“Optimon Software“) as may be stated in an applicable Order. Subject to the terms of this Agreement and such Order, Optimon grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the specified license term to install and/or use such Optimon Software solely for Customer’s internal business operations and solely in connection with Customer’s use of the Services.
5.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) use the Optimon Software for third-party training, software-as-a-service, time-sharing or service bureau use or (b) disassemble, decompile, infiltrate, hack, or reverse engineer any portions of the Optimon Software, or otherwise attempt to gain access to the source code to such Optimon Software (or the underlying ideas, algorithms, structure or organization of the object code in the Optimon Software).
- ORDERS, FEES, AND RELATED
6.1 Orders Generally. All Orders are subject to the terms of this Agreement and are not binding until accepted by Optimon. Orders created by Customer through the Website are deemed accepted when Optimon provides access to the service selected by Customer. All Orders are non-refundable except as expressly provided in this Agreement.
6.2 Fees and Payment. Customer agrees to pay Optimon all fees incurred for its usage of the Services and any additional fees specified in an Order. All amounts payable to Optimon under this Agreement will be due prior to the start of use in Optimon Platform or the start of each Billing Cycle. The billing cycle (monthly, quarterly, yearly) will be defined in the Order (“Billing Cycle”) and will start upon the Order accepted by Optimon.
6.3 Taxes. Customer will pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, however designated, which are levied or imposed because of the transactions contemplated by this Agreement, excluding only taxes based on Optimon’s net income. If Customer is compelled to make a deduction or set-off for any such taxes, Customer will pay Optimon such additional amounts as necessary to ensure receipt by Optimon of the full amount Optimon would have received but for the deduction.
6.4 Credit Card Processing. For online Orders that require payment by credit card, Optimon uses a third-party credit card processing service to process payments. Customer consents to the use of such service and to the transfer of Customer’s credit card details to such third-party processor. Customer agrees to be bound by any separate terms applicable to the processing service. Customer’s credit card will be charged fees automatically for Customer’s use of the Services at the end of each Billing Cycle.
6.5 Late Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Upon notice to Customer, Optimon may suspend Customer’s access to the Services or Support Services for failure to pay any amounts owed when due.
- INTELLECTUAL PROPERTY OWNERSHIP
7.1 Optimon Materials. Optimon retains all rights, title and interest, in and to all intellectual property rights in the Services, Optimon Software, including all related and underlying technology and documentation; and any derivative works, changes, corrections, bug fixes, enhancements, updates, modifications, or improvements of any of the foregoing (“Modifications”), (collectively, “Optimon Materials”). Except for the expressly limited rights set forth under this Agreement, no right, title or interest in any Optimon Materials is granted to Customer. Customer acknowledges that the licenses granted in this Agreement do not include the right to prepare any Modifications of the Optimon Materials. Optimon reserves all rights not expressly granted in this Agreement. No rights are granted by implication.
7.2 Data. Except for the limited rights granted under this Agreement, as between Customer and Optimon, Customer retains all rights, title and interest, including all intellectual property rights, in the Data. Data does not include data that Optimon collects as specified in section 2.3 (Usage Data).
7.3 Feedback. Customer has no obligation to provide Optimon any suggestions, enhancement requests, recommendations, or other feedback regarding Optimon’s products and services (“Feedback”). However, Optimon may use and include any Feedback that Customer provides in Optimon’s products and services without restriction or payment or any right of ownership.
8.1 Confidentiality Obligations. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (“Confidential Information”). Notwithstanding any failure to so designate it, the Optimon Software is Optimon’s Confidential Information, and Data is Customer’s Confidential Information. Each party shall (a) maintain the confidentiality of the other party’s Confidential Information using at least a reasonable degree of care; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose Confidential Information to any party except to its and its Affiliate’s employees, subcontractors and agents as is reasonably required in connection with this Agreement and who are subject to confidentiality obligations at least as protective as those set forth in this section. Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which (i) is or becomes publicly known without breach of this Agreement; (ii) is discovered or created by the receiving party without the use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; or (iii) is otherwise known to the receiving party without confidentiality restrictions and through no wrongful conduct of the receiving party.
Receiving party may disclose Confidential Information to the extent required by law or court order if the receiving party provides prompt notice and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure (“Permitted Disclosures“).
8.2. Injunctive Relief. Any breach or threatened breach of this section may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available by law.
- WARRANTIES AND DISCLAIMERS
9.1 Warranties. Optimon represents and warrants that it shall perform the Services in a professional manner, employing a standard of care, skill and diligence consistent with industry standards. Optimon’s entire obligation and Customer’s sole remedy for a breach of the foregoing warranty will be for Optimon to re-perform the Services in accordance with the requirements stated in the Services or correct any non-conformity in the Services, as applicable.
9.2 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION, OPTIMON MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OPTIMON SOFTWARE, SUPPORT SERVICES, OR ANY OTHER OPTIMON MATERIALS OR SERVICES PROVIDED HEREUNDER. OPTIMON SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OPTIMON DOES NOT WARRANT THAT THE SERVICES OR OPTIMON SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, AND/OR THE SERVICES WILL MEET THE CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS, OR THAT ACCESS THERETO WILL BE UNINTERRUPTED, OR THAT THE SERVICES WILL NOT INCLUDE ERROR, MALWARE OR BUG-FREE OR FREE FROM DEFECTS IN DESIGN, OPERATION OR PERFORMANCE OR THAT ALL ERRORS WILL BE CORRECTED. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS DISCLAIMER DIMINISHES ANY OBLIGATIONS EXPRESSLY STATED IN THE SERVICE AGREEMENT REFERENCED IN THIS AGREEMENT OR AN ORDER HEREUNDER.
10.1 By Optimon. Optimon will defend Customer from and against any claim, demand, or lawsuit brought against Customer by a third party alleging that the Services and any Optimon Software licensed under an Order (together, the “Optimon Technology”), as made available to Customer by Optimon and used pursuant to this Agreement, infringes such third party’s intellectual property rights, and Optimon will pay such damages or costs as are finally awarded against Customer or agreed to in settlement attributable to any such action, provided that Customer gives Optimon (a) prompt notification in writing of any such action; (b) sole control of the defense or settlement of such action (provided any settlement releases Customer from all liability); and (c) all reasonable information and assistance, at Optimon’s expense. If the Optimon Technology becomes, or in the opinion of Optimon is likely to become, the subject of such an infringement claim, Optimon shall, at its option and expense, either: (i) procure for Customer the right to use the allegedly infringing element of the Optimon Technology, at no charge to Customer; (ii) replace or modify, in whole or in part, the Optimon Technology to make it non-infringing; or (iii) if neither (i) or (ii) are commercially available, terminate the applicable Order, and refund a pro-rata portion of any fees pre-paid by Customer for the terminated Services. Optimon assumes no liability hereunder for any claim of infringement if such claim is based on: (a) Data, (b) use of software other than a current unaltered release of the Optimon Software, as provided by Optimon to Customer; (c) the combination, operation or use of the Optimon Technology, with non-Optimon programs or hardware, if the claim would not have arisen but for such combination, operation or use; (d) any alteration or modification of the Optimon Software by a party other than Optimon, or (e) use of the Optimon Technology other than in accordance with this Agreement. THIS SECTION SETS FORTH OPTIMON’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
10.2 By Customer. Customer will defend Optimon from and against any claim, demand, or lawsuit brought against Optimon by a third party arising out of or relating to any Data, including any claim involving alleged infringement or misappropriation of third-party rights by the Data, and Customer will pay such damages or costs as are finally awarded against Optimon attributable to any such action, provided that Optimon gives Customer (i) prompt notification in writing of any such action; (ii) sole control of the defense or settlement of such action (provided any settlement releases Optimon from all liability); and (iii) all reasonable information and assistance, at Customer’s expense.
- LIMITATION OF LIABILITY
11.1 NOTHING IN THIS AGREEMENT LIMITS EITHER PARTY’S (I) LIABILITY FOR PERSONAL INJURY, DEATH OR WILLFUL MISCONDUCT, (II) LIABILITY THAT CAN NOT BE LIMITED BY APPLICABLE LAW, OR (III) OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
11.2 EXCEPT AS SET FORTH IN SECTION 11.1,
(A) NEITHER PARTY (NOR ITS SUPPLIERS) WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR LOSS OF BUSINESS, PROFITS, ANTICIPATED SAVINGS, OR DATA, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
(B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES OR LIABILITY OF ANY TYPE EXCEED THE AMOUNT PAID BY CUSTOMER TO OPTIMON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THESE EXCLUSIONS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- TERM AND TERMINATION
12.1 Term. This Agreement commences on the day the Order is approved by Optimon (“Effective Date”) and will remain in effect until the termination date detailed in the Order or expiration of all Orders governed by this Agreement, unless earlier terminated as provided below.
12.2 Termination. Either party may terminate this Agreement or an Order upon written notice in the event the other party materially breaches this Agreement and such breach is not cured within thirty days after written notice of such breach. The termination of an Order will not automatically result in the termination of this Agreement. Either party may also terminate this Agreement immediately if the other party (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
12.3 Effect of Termination. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement will survive termination. Upon termination of this Agreement or expiration of an Order, Customer will immediately cease use of and access to the Services and the Support Services, and delete all copies of the Optimon Software and related documentation.
13. SUPPORT SERVICES. Optimon will provide Support Services for the Services, during the working days, and within 72 hours of receiving a request that will be sent to the email address provided to the Customer in the Order, or as otherwise stated in the Order.
14. TRIAL SUBSCRIPTION. A “Trial Subscription” is a short-term evaluation of the Services, pursuant to an Order that is specifically labeled “Trial Subscription.” If Customer orders a Trial Subscription, the terms of this section 14 govern that use and control over any conflicting provision of this Agreement; provided however that the Trial Subscription Order will include all applicable provisions of this Agreement that are not in conflict with the provisions of this section 14. Unless specifically stated in an Order, Customer may use the Trial Subscription only for (a) internal testing and evaluation of the Services, and (b) for the period stated in the Order. If the Order does not state a term, the term for the Trial Subscription will be for 14 days beginning on the date Customer is provided access to the Services. Customer will not have access to Optimon Platform after the Trial Subscription term ends. Unless specifically stated in an Order, Optimon will provide the Trial Subscription: (a) without support; (b) “AS IS”; and (c) without indemnification, warranty, or condition of any kind.
Unless an Order states otherwise, Customer must not transmit data regulated by law or regulation into the Services during the Trial Subscription term. Certain features or functionality of the Services may not be available in a Trial Subscription. Providing any Trial Subscription, or any feature or functionality in a Trial Subscription does not constitute Optimon commitment to offering it or the Trial Subscription on a generally available basis.
15.1 Assignment. Neither party may assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent, except to an Affiliate or to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any purported transfer, assignment or delegation without such prior written consent will be void. Subject to this section, this Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns.
15.2 Delays. In the event that either party is unable to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, acts or intervention of governmental authority, or any other cause beyond the reasonable control of the party invoking this section, and if such party used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
15.3 Governing Law. This Agreement is governed by the laws of the State of Israel without regard to its conflicts of laws principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of courts at Tel Aviv Israel. The parties consent to the personal and exclusive jurisdiction and venue of these courts.
15.4 Other. This Agreement, together with its exhibits, addendums and any incorporated terms, represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to its subject matter, and is not intended to confer upon any third party any rights or remedies. Customer acknowledges that it has not relied on any representations other than those contained in this Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. Optimon may use Customer’s trade names, service marks and logos in marketing materials and customer lists for advertising or publicizing Customer’s use of the Services. The terms of this Agreement will supersede any additional or conflicting term in any purchase order or other purchasing-related document issued by Customer and relating to an Order. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it will be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. Nothing in this Agreement will be construed as creating an agency, partnership, or joint venture relationship between the parties. Neither party shall have any right or authority to assume or create any
obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect. Notices will be in writing and deemed given when (i) sent by e‑mail and confirmed by answer (ii) delivered in person (including by overnight courier), or (iii) three business days after being mailed by first-class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Each party represents and warrants that the individual binding a party under this Agreement and any Order is authorized to do so.