These Master Services Agreement Terms (the “MSA”), together with any applicable Order Forms and any documents incorporated by reference (collectively, the “Agreement”), are entered into between Optym, Inc., a Delaware C Corporation (“Optym”), with its headquarters located at 3401 Olympus Blvd., Suite 500, Dallas, TX 75019, USA, and the entity or individual accepting this Agreement (“Client”). By accessing or using the Services, executing an Order Form with Optym or with an Authorized Reseller that references this MSA, or otherwise indicating acceptance, Client agrees to be bound by the terms of this MSA. If Client does not agree, Client must not access or use the Services. The Agreement is effective on the earliest of: (a) the date Client accepts this MSA electronically; (b) the effective date of an Order Form referencing this MSA, whether executed with Optym directly or with an Authorized Reseller; or (c) the date Client first accesses or uses the Services (the “Effective Date”). Optym and Client are each referred to individually as a “party,” and collectively as the “parties.”
1. DEFINITIONS
a) “Admin User” means any Client employee or on-site contractor designated by Client to have administrative access to the Service on behalf of Client.
b) “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term "control" (including the terms “controlled by” and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
c) “Authorized Reseller” means a third party that has been granted written authorization by Optym to market, resell, or distribute access to the Services and to execute Order Forms with clients on Optym's behalf, subject to a valid reseller or channel partner agreement with Optym.
d) “Aggregate Data” means Client Data (as defined in Section 5(a)) that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify Client as the source of such data.
e) “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Services by Client.
f) “Client Facilities” means Credentials and any account, hardware, system or other facility within the custody or control of Client.
g) “Emergency Security Issue” means any: (i) use of the Services by Client in violation of the terms and conditions of this Agreement that disrupts or is reasonably likely to disrupt the availability of the Services to other users; or (ii) access to the Services by any unauthorized third party through use of any Client Facilities.
h) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
i) “Internal Purposes” means internal business use within Client’s systems, networks, and devices (“Client Environment”), as well as testing and evaluation of the Services in order to provide Feedback to Optym.
j) “LoadAi” means Optym's proprietary optimization and artificial intelligence software platform designed for truckload carriers, including all features, functionality, updates, and enhancements thereto made available by Optym from time to time.
k) “Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.
l) “Order Form” means a written or electronic ordering document or agreement specifying the Services to be provided by Optym to Client, including any applicable pricing, subscription terms, and other commercial terms, that (i) is executed directly between Optym and Client, or (ii) is executed between an Authorized Reseller and Client on Optym's behalf, in each case subject to and governed by this MSA.
m) “Person” means an individual, corporation, partnership, joint venture, limited liability entity, franchisor, franchisee, governmental authority, unincorporated organization, trust, association, or other entity.
n) “Services” means LoadAi and any and all of the services, software and other offerings provided by Optym pursuant to this Agreement, including the offerings provided through https://optym.com/, any other media form, media channel, mobile applications and APIs provided by Optym, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by Optym.
2. GRANT OF RIGHTS AND RESTRICTIONS
a) Grant of Rights. During the term of this Agreement and subject to and conditioned upon Client’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations on use set forth in any Order Form), Optym hereby grants Client a limited, non-exclusive, non-sublicensable right to access and use the Services only for the Internal Purpose.
b) Authorized Resellers. Client may enter into this Agreement and execute Order Forms through an Authorized Reseller. Where Client acquires access to the Services through an Authorized Reseller: (i) this MSA governs Client's use of the Services and Client agrees to be bound by these as if Client had contracted directly with Optym; (ii) Optym remains the sole provider of the Services and the Authorized Reseller has no authority to modify, waive, or amend this MSA or grant any rights in excess of those set forth herein; (iii) any commercial terms between Client and the Authorized Reseller (including pricing, payment, and invoicing) are solely a matter between Client and the Authorized Reseller and are not binding on Optym; (iv) Optym’s obligations to Client are limited to the provision of the Services in accordance with this MSA and do not extend to any commitments made by the Authorized Reseller; and (v) in the event of any conflict between this MSA and any terms issued by the Authorized Reseller, these Terms shall control with respect to Client's use of the Services.
c) Restrictions. Except as expressly authorized in this Agreement or by Optym, Client will not, and will not permit any third party to: (i) access or use the Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Services (except as required to run the Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Services to any third party; (v) use or offer any functionality of the Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Services, or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the Services or otherwise attempt to derive the Services source code, algorithms, methods or techniques used or embodied in the Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Services; (ix) interfere with or disrupt servers or networks connected to any website through which the Services are provided; (x) use the Services to collect or store personal data about any person or entity; (xi) use the Services to build a similar or competitive product or service; (xii) use the Services to transmit Malicious Code or (xiii) use the Services for any illegal, unauthorized or otherwise improper purposes.
d) Other Parties. Any Admin User, employee, consultant, contractor or agent hired to perform services for Client may operate the Services on Client’s behalf solely under these terms and conditions, provided that: (i) Client is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Client; (ii) such use is only in connection with Client’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Client remains fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.
e) Service Level. Optym will use commercially reasonable efforts to provide the Services in accordance with the service level objectives set forth in this Section 2(e)(i) (the “Service Level Objectives”). Optym reserves the right to support only current versions of the Services in its discretion. Optym’s provision of Services and any technical support therewith shall be contingent on Client’s full cooperation with Optym and Client supplying all information, data, consents and access to Client’s systems and data as necessary for Optym to integrate or adapt its Services.
i. Service Level Objectives. Optym shall use commercially reasonable efforts to make the Services available to Client for at least ninety-nine percent (99.0%) of the time in any calendar month during the Term. Availability will be calculated per calendar month, as follows (Up Time – Down Time)/(Up Time)*100% (the “Availability”). Optym’s records and data shall be the basis for all Availability calculations and determinations.
a. “Down Time” shall mean a period of ten (10) consecutive minutes of unavailability of the Services that is not Excluded Time. For the avoidance of doubt, Down Time shall not include unavailability of the Services for a period of less than ten (10) minutes.
b. “Up Time” means the total number of minutes for a calendar month.
c. “Excluded Time” means the following: (i) any outages caused by any Force Majeure (as defined in Section 12(l) below); (ii) any of the following outages of Client or any third parties if not within Optym’s possession or reasonable control (excluding Optym’s third party database and data storage provider): computer outages, telecommunication outages, Internet service outage or hosting facility failures, or delays involving hardware, software or power systems, and network intrusions or denial of service attacks; (iii) any outages that result from any unauthorized actions or inactions of Client or any third parties not provided by Optym; (iv) any outages caused by programming errors in Client’s application(s) or by programming bugs in the third-party extensions/modules not developed or provided by Optym; (v) any outages resulting from scheduled maintenance, Optym notifies Client at the email address set forth in any Order Form at least forty-eight (48) hours prior to the commencement of the maintenance; and/or (vi) any outages resulting from any maintenance performed outside the scheduled maintenance windows without advance notice where such maintenance is reasonably and urgently required to protect the integrity, availability, or security of any online systems and/or the Service.
ii. Technical and Customer Support Hours. Optym shall make technical and customer support available to Client during the following hours: Monday through Friday, 8:00 AM Central Time (CT) to 5:00 PM Central Time (CT), excluding U.S. federal holidays (“Business Hours”). Support requests submitted outside of Business Hours will be acknowledged and queued for response on the next applicable Business Day. Optym reserves the right to modify its support hours upon at least thirty (30) days' prior written notice to Client.
iii. Credits. In the event that in a given month Optym does not meet or exceed the Availability, Optym will provide to Client a service credit of additional days of Service to be added to the end of Client’s Term for the Service up to a maximum of 28 days, at no charge to Client, as a result of Optym’s inability to meet the requisite Availability (the “Accommodations”). Optym will grant such Accommodations as follows:
Monthly Uptime Percentage Days of Service added to the end of the Term, at no charge
< 99.5% - > 98.0% 1 Day
< 98.0% - > 95.0% 3 Days
< 95.0% 7 Days
For the avoidance of doubt, the aforementioned Accommodations may not be exchanged for, or converted to, monetary amounts.
To request an Accommodation, (A) Client must be in good standing with Optym, (B) Client must open a technical support ticket by reporting an apparent Service interruption within seventy-two (72) hours of the event, and (C) Client must send an email or written Accommodation request to Optym in the calendar month immediately following the month for which Client is requesting an Accommodation. Accommodation requests must include Client’s name, account number, and the dates and specific times for which Client is requesting Accommodations. Optym will compare information provided by Client to Optym’s records and data. An Accommodation will be issued only if Optym confirms from such data that an Accommodation is available. The limits and sole remedies regarding Accommodations shall be Client’s sole and exclusive remedy in connection with any level of Service not meeting the Service Level Objectives outlined in this Agreement and the Availability therefor. Notwithstanding the foregoing, Client shall have the option to terminate this Agreement if Optym fails to meet the Availability for three (3) consecutive months.
f) Changes. Optym may improve, modify, add or remove functions or features to or from the Services from time to time, with or without notice to Client.
g) Project Representatives. Each party shall designate a representative (each, a “Project Representative”) who shall serve as such party's primary point of contact for day-to-day project management, coordination, and communication under this Agreement. Each party shall notify the other party in writing of its initial Project Representative within ten (10) business days of the Effective Date. Either party may replace its Project Representative at any time upon written notice to the other party. Project Representatives shall be responsible for: (i) coordinating the activities of their respective party in connection with the performance of obligations under this Agreement; (ii) facilitating prompt resolution of operational issues that arise in the course of Service delivery; and (iii) serving as the primary liaison for communications regarding Service delivery, implementation, and ongoing support.
3. CLIENT RESPONSIBILITIES
a) Compliance with Laws. Client shall be solely responsible for ensuring that it uses the Services only in a manner that complies with all applicable laws and regulations, including for ensuring that Client is permitted under all applicable laws and regulations to use and provide Client Data (defined below) to Optym for processing in accordance with this Agreement.
b) Technical Requirements. Client shall be solely responsible for obtaining, configuring and maintaining any third-party hardware, network connectivity and third-party software required to access and use the Services, including computers, operating systems, web browsers and storage devices.
c) Third Party Sites. The Services may contain advertisements and/or links to other websites (“Third-Party Sites”). Optym does not endorse, sanction or verify the accuracy or ownership of the information contained in/on any Third-Party Site or any products or services advertised on Third Party Sites. If Client decides to leave the Services and navigate to Third-Party Sites, or install any software or download content from any such Third-Party Sites, Client does so at Client’s own risk. Once Client accesses a Third-Party Site through a link in the Services, Client may no longer be protected by this Agreement and Client may be subject to the terms and conditions of such Third-Party Site. Client should review the applicable policies, including privacy and data gathering practices, of any Third-Party Site to which Client navigates from the Services, or relating to any software Client uses or installs from a Third-Party Site. Concerns regarding a Third-Party Site should be directed to the Third-Party Site itself. Optym bears no responsibility for any action associated with any Third-Party Site.
d) Protection. Client shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Client Facilities. In the event that Client becomes aware of any unauthorized access to or use of the Services through use of Client Facilities, Client shall promptly give written notice to Optym of such breach and make reasonable efforts to eliminate it. Client shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Services through Client Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care. Client acknowledges that Optym is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
4. FEES AND TAXES
a) Fees. Client shall pay Optym the applicable fees set forth in any Order Form pursuant to the payment terms therein. In the event that an Order Form does not set forth payment terms, payment shall be due within thirty (30) days from the date of invoice. In addition to the fees described in an Order Form, Client will pay Optym’s documented out-of-pocket travel expenses (at cost).
b) Late Fees. Any payment not received from Client when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. If Client is delinquent in its payments for two (2) consecutive months, Optym may, upon written notice to Client, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure Client’s payment obligations hereunder.
c) Third-Party API and Licensing Fees. In connection with providing the Services, Optym may utilize third-party application programming interfaces, software platforms, data providers, or other third-party technology (collectively, “Third-Party Integrations”). Any fees, costs, or charges imposed by third-party providers in connection with such Third-Party Integrations may, at Optym's sole discretion, be: (i) passed through to Client at cost; (ii) passed through to Client with an administrative markup to reflect Optym’s costs of procurement, management, and support; or (iii) absorbed by Optym and included within the fees set forth in the applicable Order Form. Optym reserves the right to modify, suspend, or discontinue any Third-Party Integration at any time, including as a result of changes to the terms or pricing imposed by the applicable third-party provider. Client acknowledges that Optym does not control the pricing, availability, or terms of any Third-Party Integration, and Optym shall have no liability to Client arising from any modification, suspension, or termination of a Third-Party Integration by the applicable third-party provider.
d) Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Optym’s net income, and Client shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Client is legally required to withhold any amounts to be paid to Optym, Client will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Optym on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Optym to establish Optym’s right to a credit for such taxes against Optym’s income tax liability. Client shall provide Optym with such assistance as Optym shall reasonably request in connection with any application by Optym to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.
5. INTELLECTUAL PROPERTY
a) Responsibility for Content. All data, information and other content accessible through the Services (“Data”) are the sole responsibility of the party from whom such materials originated. Client acknowledges and agrees that Client, and not Optym, is solely responsible for (i) all Data that Client submits, uploads, emails, transmits or otherwise makes available through the Services (“Client Data”); and (ii) giving all required notices and obtaining all necessary consents and rights (including all required permissions from Intellectual Property holders) before submitting Client Data through or to the Services.
b) Optym Ownership. The Services are licensed, not sold, and Optym, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. Client acknowledges and agrees that, as between Optym and Client, Optym, its suppliers or its licensors own all right, title and interest (including all Intellectual Property) in and to the Services, and all improvements, enhancements or modifications thereto, including all Data therein (except for Client Data), regardless of whether or not any such improvements, enhancements or modifications are made pursuant to an Order Form.
c) Client Data. Optym acknowledges and agrees that, as between Client and Optym, Client owns all right, title and interest (including all Intellectual Property) in and to Client Data. Client hereby grants Optym and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Client Data (including Aggregate Data) as necessary for Optym to: (i) provide access to the Services to Client (including any Professional Services); (ii) provide maintenance, support, calibration, diagnostic and troubleshooting services to Client relating to the Services; and (iii) monitor and improve the Services. Optym shall process and use any personal data that Client provides in accordance with the Optym Privacy Policy.
d) Aggregate Data. Client acknowledges and agrees that Optym may collect or generate Aggregate Data in connection with providing Client with access to the Services, and Client hereby grants Optym and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose. Client acknowledges that Optym may use Client Data to train and improve its AI models, provided that such data is anonymized and does not include personally identifiable information.
e) Suggestions. If Client elects to provide or make available to Optym any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Client hereby grants Optym a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions in any manner, without credit or compensation to Client.
f) Trademarks. During the term of this Agreement, Client hereby grants Optym a limited, nonexclusive, royalty-free license to use Client’s names, logos, trade names, domain names, uniform resource locators, trademarks and service marks (“Marks”) as reasonably necessary for Optym to provide Client with the Services and Professional Services. Optym will not: (i) alter or otherwise modify any of the Marks; (ii) attack ownership of, or rights to, any of the Marks; or (iii) intentionally use the Marks in a way that might deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of Marks.
g) Intellectual Property Notices. Client shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Services.
h) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
6. TERM, SUSPENSION AND TERMINATION
a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of the Initial Term, each as specified in an Order Form. Thereafter, this Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each, a “Renewal Term”), subject to payment of all applicable fees by Client, unless either party gives written notice of non-renewal to the other party within thirty (30) days before the conclusion of the Initial Term or applicable Renewal Term. Optym reserves the right to change prices and other terms for the Services for any upcoming Renewal Term by providing notice of such change to Client at least thirty (30) days before the commencement of the applicable Renewal Term.
b) Suspension. Optym reserves the right to suspend Client’s access to or use of the Services in the event of: (i) Client’s breach of this Agreement, including Client’s failure to pay any fees when due under this Agreement; or (ii) an Emergency Security Issue, in which case Optym will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue.
c) Termination. Notwithstanding anything to the contrary, this Agreement or any Order Form may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement or applicable Order Form by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party, provided that, in the event such breach relates only to a specific Order Form, termination may be limited to such Order Form; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
d) Events Upon Termination. Upon termination of this Agreement for any reason: (i) Client shall immediately cease all use of and access to the Services; (ii) Client shall return all portions of the Services within Client's custody or control by methods previously approved by Optym; (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) and return or destroy all copies of such Confidential Information that are within its custody or control; (iv) any and all of Client’s payment obligations under each Order Form will immediately become due (including without limitation for any cancellation by Client of the Services prior to expiration of the then current term or Client’s failure to pay any fees when due); (v) Optym may delete or restrict access to Client Data or any accounts associated with Client; and (vi) all fees paid by Client prior to the effective date of termination are non-refundable and shall be retained by Optym in their entirety, regardless of the reason for or circumstances of such termination.
e) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(c) {Restrictions}; 4 {Fees and Taxes}; 5 {Intellectual Property}; 6(d) {Events Upon Termination}; 6(e) {Survival}; 7 {Representations and Warranties}; 8 {Indemnification}; 9 {Confidential Information}; 10 {Disclaimer of Warranties}; 11 {Limitation of Liability}; and 12 {Miscellaneous}.
7. REPRESENTATIONS AND WARRANTIES
a) General. Optym and Client each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
b) Client Warranties. Client further represents and warrants that: (i) Client has the right to submit all Client Data to the Services and to grant the licenses set forth in this Agreement; (ii) Client Data and Client's use of the Services will not violate any applicable law or infringe any third-party rights; and (iii) Client will use the Services only in accordance with this Agreement and all applicable laws and regulations. Client's sole and exclusive remedy for any breach of a warranty by Optym under this Agreement shall be re-performance of the applicable Professional Services or, at Optym's election, a pro rata refund of fees paid for the non-conforming Services.
8. INDEMNIFICATION
a) Optym Indemnification. Subject to the terms of this Agreement, Optym will defend Client against any third-party claim, suit, or proceeding alleging that the Services, as used by Client in accordance with this Agreement, infringe or misappropriate any patent, copyright, trademark, or trade secret of a third party (each, an “IP Claim”), and will indemnify Client against any damages, costs, and reasonable attorneys' fees finally awarded by a court of competent jurisdiction or agreed to in a written settlement approved by Optym in connection with any such IP Claim. The foregoing obligations do not apply to any IP Claim arising from or related to: (i) Client's use of the Services in a manner not authorized by this Agreement or in violation of applicable law; (ii) modification of the Services by or on behalf of Client without Optym's prior written consent; (iii) combination or integration of the Services with any software, hardware, data, or service not provided or approved by Optym, where the infringement would not have occurred but for such combination; (iv) Client Data or any content or materials submitted by Client through the Services; (v) Client's continued use of the Services after Optym has made available a materially equivalent non-infringing update or modification and provided written notice to Client; or (vi) any claim arising under foreign intellectual property laws outside the United States (collectively, “Client IP Exclusions”). If any Services become, or in Optym's reasonable opinion are likely to become, the subject of an IP Claim, Optym may, at its sole option and expense: (1) procure for Client the right to continue using the Services; (2) modify or replace the Services so that they are non-infringing while retaining materially equivalent functionality; or (3) if neither option (1) nor option (2) is commercially reasonable, terminate this Agreement or the applicable Order Form upon written notice and refund to Client a pro rata portion of any prepaid fees for the unexpired portion of the then-current term. The indemnification and remedies set forth in this Section 8(a) are Optym's sole obligation and Client's sole and exclusive remedy with respect to any IP Claim.
b) Client Indemnification. Client will defend, indemnify, and hold harmless Optym and its officers, directors, employees, agents, successors, and permitted assigns against any third-party claim, suit, proceeding, loss, damage, liability, cost, or expense (including reasonable attorneys' fees) finally awarded or agreed to in settlement arising from or related to: (i) Client's breach of this Agreement; (ii) Client's use of the Services in a manner not authorized by this Agreement or in violation of applicable law or third-party rights; (iii) Client Data, including any allegation that Client Data infringes or misappropriates any third-party intellectual property right or violates any applicable law; (iv) Client’s products or services; or (v) any Client IP Exclusion.
c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying party has been materially prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
9. CONFIDENTIAL INFORMATION
a) Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Optym’s Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement, the source code and architectural and physical framework of the various components of the Services, information relating to future releases of Services components, testing processes, training videos, instructions, manuals, pricing information, and business plans provided by either party.
b) Non-Disclosure. Each party will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party Confidential Information of the other party. Client agrees that at no time will Client disseminate any materials supplied to Client, including, without limitation via blog, video channels, data uploading services, etc. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.
10. DISCLAIMER OF WARRANTIES
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” OPTYM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF THE SERVICES WILL BE ACCURATE, ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CLIENT’S REQUIREMENTS. CLIENT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO OR THEFT OF THE HARDWARE WHILE IN CLIENT’S CUSTODY OR CONTROL, INCLUDING ANY DAMAGE ARISING FROM DROPS, WATER DAMAGE OR OTHER MISUSE. OPTYM WILL HAVE NO LIABILITY OR OBLIGATION TO REPAIR OR PROVIDE MAINTENANCE AND SUPPORT IN CONNECTION WITH THE SERVICES FOR ANY ERROR OR DAMAGE ARISING FROM ANY ACTS OR OMISSIONS OF CLIENT OR ITS USERS, EMPLOYEES, CONTRACTORS, OR AGENTS IN VIOLATION OF THIS AGREEMENT.
11. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF SECTION 2(c) OR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY OPTYM FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
12. MISCELLANEOUS
a) Independent Contractors. The relationship between Optym and Client established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and delivered by confirmed facsimile, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. The notice address for Optym is 3401 Olympus Blvd., Suite 500, Dallas, TX 75019, USA and the notice address for Client is the address specified in the Order Form. Either party may change its notice address by giving written notice to the other party by the means specified in this Section 12(b).
c) Publicity. Notwithstanding anything to the contrary in this Agreement, from time to time Client will provide Optym with the marketing assistance reasonably requested by Optym, including but not limited to the following: (i) References: Client will permit Optym to identify them as a user of the Services, such as identifying Client in general promotional literature or in proposals to and/or responses to inquiries from prospective customers; (ii) Press Releases: Client will participate in press releases pre-approved by Client, which approval shall not be unreasonably withheld, conditioned or delayed; and (iii) Public Quotation: Client will provide Optym with at least one public quote per year on the Services success or reason for choice, including the value delivered by the Services and one graphical image for use in printed or online promotion by Optym.
d) Assignment. Client may not assign this Agreement or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Optym. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
e) Interpretation. For the purposes of this Agreement: (i) use by Client includes use by Admin Users; (ii) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (iii) the word “or” is not exclusive; and (iv) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Order Form or policy, the terms and conditions of this Agreement shall take precedence.
g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
i) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
j) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Dallas, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
l) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision (collectively, a “Force Majeure”).
m) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
BY ACCESSING OR USING THE SERVICES, EXECUTING AN ORDER FORM OR OTHERWISE INDICATING ACCEPTANCE, CLIENT ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS MSA. IF CLIENT IS ACCEPTING ON BEHALF OF AN ENTITY, CLIENT REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND THAT ENTITY TO THIS MSA.
