ARDI Server Software License Agreement

BY COPYING, INSTALLING, EXTRACTING OR OTHERWISE USING ANY OF THE SOFTWARE CONTAINED IN THIS INSTALLER, YOU (THE CUSTOMER) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF THE CUSTOMER DOES NOT AGREE TO THESE TERMS, THEY ARE NOT PERMITTED TO USE THE SOFTWARE.
1	DEFINITIONS
The capitalized terms used in this Agreement shall have the meaning given to them below.   Words importing the singular shall also include the plural and vice versa, as the context requires. Optrix and Customer are each referred to herein as a “Party” and together as the “Parties.” The term “General Terms and Conditions” shall mean specifically the body of the following section, and all appendices attached hereto. The term “Agreement” shall mean, collectively, these General Terms and Conditions and any Order issuing from the attached quote or proposal, except that any other or additional terms and conditions contained in an Order are null and void. Headings are used for convenience only.
1.1.	“Confidential Information” of a Party means all of that Party’s information and documentation, disclosed to or accessed by the other Party in connection with this Agreement regardless if it is marked as “confidential” , including any information developed by reference to or use of the other Party’s Confidential Information. Optrix’s Confidential Information includes the Optrix Offerings. Customer’s Confidential Information includes Customer Data, provided the Parties agree the confidentiality of the Customer Data shall be managed and protected as detailed in clause 3.1. “Confidential Information” does not include information that: (a) is independently developed by the receiving Party, as demonstrated by the recipient’s written records, without violating the disclosing Part      y’s proprietary rights or breaching any obligations of confidentiality; (b) is or becomes publicly known (other than through unauthorized disclosure); (c) is disclosed by the owner of such information to a third party free of any obligation of confidentiality; (d) is already known by the receiving Party at the time of disclosure, as demonstrated by the receiving Party’s written records, and the receiving Party has no obligation of confidentiality other than pursuant to this Agreement; or (e) is rightfully received by the receiving Party free of any obligation of confidentiality. 
1.2.	“Customer Data” means data, information, documentation, and software provided by Customer for use in connection with the Optrix Offerings which is protected as detailed in Section 3.1.
1.3.	“Fees” means the fees for the Software.
1.4.	“Infringement Claim” is defined in Section 10.1.
1.5.	 	 “Optrix” – Refers to Optrix Pty. Ltd., a private company based in NSW, Australia.
1.6.	“Order” means a written proposal, quote or offer issued by Optrix and accepted by the Customer as evidenced by the issue of a Purchase Order to which these General Terms and Conditions are attached or referenced For clarity, “Order” excludes any terms and conditions that purport to modify or supplement any of the General Terms and Conditions.
1.7.	“Purchase Order” means a document entitled “Purchase Order” issued by the Customer pursuant to this Agreement. For clarity, “Purchase Order” excludes any terms and conditions that purport to modify or supplement any of the General Terms and Conditions.
1.8.	“Operations” means the specific operations specified in the Order or Purchase Order, which shall be one of the operations listed on Appendix C. 
1.9.	“Software” means the software package delivered under this license, except for those portions of the package that are under other license agreements. A complete list of which components are under other license agreements is made available on request to Optrix.
1.10.	“User” means any entity or person, except that Customer may disclose Customer’s credentials to Customer’s employees, agents, and subcontractors performing work on Customer’s behalf.
1.11.	“Optrix Offerings” means, collectively, the Software, and Support Services provided by Optrix in accordance with this Agreement. 
1.12.	“Optrix Personnel” means Optrix and any of their suppliers or personnel. 

2	SCOPE  

This Agreement sets forth the terms and conditions that govern any Order issued for the provision of Optrix Offerings described herein and consists of: (a) these General Terms and Conditions, (b) the Order, and (c) the appendices attached hereto. Any Purchase Order, order receipt, acceptance, confirmation, correspondence, online terms, or other confirmatory documents presented by Customer shall be deemed to be presented for payment purposes only, and Optrix specifically objects to, and shall not be bound by, any additional or different terms contained in such documents. In the event of any inconsistency, the following order of precedence will apply: (i) the General Terms and Conditions, (ii) the appendices to this Agreement  (in the following order: Appendix B, Appendix D, Appendix A and Appendix C) and (iii) an Order, provided that these General Terms and Conditions shall take precedence over any conflicting or inconsistent term in the Order unless an Order expressly by reference overrides a provision of this Agreement or appendices in which case the Order will prevail. An Order in relation to an Optrix Offering only becomes binding upon acknowledgement of a valid Purchase Order. 

3	DATA SECURITY AND PRIVACY  

Optrix shall and shall ensure that it uses reasonable efforts to implement appropriate measures, or ensure implementation of appropriate measures, in accordance with its or its standard security policies designed to secure Customer Data against accidental or unlawful loss, access, or disclosure.  Customer consents to Optrix’s collection, use, and disclosure of information associated with the Products as described in this Agreement and in particular to the processing of Customer Data in, and the transfer of Customer Data into the country in which the Customer maintains facilities. Optrix shall and will ensure that it treats Customers contact information (including business contact information of Customer representatives) in accordance with the Customers existing Privacy Policy, if such a policy is provided.
3.1	Regulated Data. 
If Customer Data includes any data subject to specific legal or regulatory requirements (including, but not limited to, health care data, EU personal data, export-controlled data, or sensitive government data), Customer shall notify Optrix in writing of such requirements and provide any information that is necessary or reasonably requested by Optrix to determine the applicable regulatory requirements. Except as may be specified by Optrix in writing, Optrix shall not have any responsibility to discover or provide a Product that complies with such regulatory requirements. Without limiting the generality of the foregoing, if Customer intends to use the Products to process personal data of individuals located in the European Union, Customer shall notify Optrix in writing and the parties will reasonably cooperate to comply with their respective obligations under the EU General Data Protection Regulation. Notwithstanding the foregoing, Optrix shall not use or disclose any Customer Personal Data, including any personally identifiable information of Customer Personnel obtained in connection with this Agreement, for any purpose, other than: 1) to perform Services and other obligations under this Agreement, 2) to contact and/or notify Customer in relation to this Agreement or the Services, or 3) as otherwise requested or authorized by Customer in writing. For the purpose of this Section 4.1: 
(a) “Customer Personal Data” means all “Personal Information” provided or made available by or on behalf of the Customer, by or on behalf of any of the Customer Affiliates or that is otherwise generated or collected by Optrix under or in connection with the performance of this Agreement; 
(b) “Customer Personnel” means any director, officer, employee, agent or contractor of the Customer or any of the Customer Affiliates; and
(c) “Personal Information” means any information (but not limited to employment ratings or actions) about an identified or identifiable natural person and includes any permitted purpose categories of data listed in the Customer’s Privacy Policy, if the customer provides one.
 

4	CUSTOMER RESPONSIBILITIES.
4.1	Customer Data and Equipment. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data and Customer equipment. Customer is responsible for securing all necessary rights and permissions to provide Customer Data to Optrix and to use Customer Data with the Software. For example, Customer is solely responsible for:

a)	the technical operation of Customer Data, including ensuring that calls Customer makes to or from any Customer application or service are compatible with the Software;
b)	compliance of Customer Data with the Data Protection Plan;
c)	compliance by Customer with all applicable laws, executive orders, administrative rules and regulations, safety standards, ordinances, and court orders in using the Software;
d)	any third party claims relating to Customer Data; 
e)	the operation, control, conditions, use, and maintenance of Customer equipment and ensuring that Customer’s computer systems and equipment meet the current technical requirements for the Software;
f)	the accuracy, completeness, and timeliness of Customer Data; and
g)	proper handling and processing of notices sent to Customer (or any of Customer’s Affiliates) by any person claiming that Customer Data violates such person’s rights, including notices pursuant to the U.S. Digital Millennium Copyright Act or similar laws of other countries.
5	SOFTWARE Licenses. Subject to Customer’s payment of all applicable fees and compliance with this Agreement, Optrix grants to Customer a limited, non-transferable, nonexclusive license, for the license period specified in the applicable Order, to use the Software provided pursuant to the Order for Customer’s internal business use.  Customer must comply with any license scope or usage limitations (such as named user, concurrent user, processor, server, site, facility, or asset-based limitations) described on the applicable Order. Customer shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or commercially exploit the Software, or make the Software available to any third party, other than as expressly permitted by this Agreement.  
5.2	Grant of Rights. The Customer may only duplicate the Software for the purpose of backups. Any additional instances require additional licenses. Exceeding the limits set out by the license may be grounds for Optrix to terminate the agreement, at their discretion.
5.3	Customer Responsibilities. Unless otherwise specified in the Order, Customer shall be solely responsible for:
a)	properly installing, configuring, and using the Software in accordance with applicable documentation provided to the Customer by Optrix, 
b)	providing any hardware, equipment, and physical infrastructure necessary to run the Software,
c)	providing any third-party software not included in the Software,
d)	maintaining the security, privacy, and backup of Customer Data, 
e)	compliance with applicable laws related to the use, storage, or processing of Customer Data,
f)	the proper operation, control, and maintenance of Customer equipment monitored by the Software, and
g)	applying patches, bug fixes, upgrades, and updates of the Software or third-party software.
5.4	Optrix Software Warranty. Optrix warrants that as of the date of delivery by Optrix, Software will materially conform with the written product documentation supplied with the Software. If within ninety (90) days of the date of delivery it is shown that the Software does not meet this warranty, Optrix shall, at its option, either correct the defect or error in the Software, free of charge, or make available to Customer satisfactory substitute software, or, if none of the foregoing is reasonably practicable, offer to return to Customer all payments made as license fees therefor after Customer certifies that it has returned or deleted all copies of the Software in its possession. The remedy provided in this Section shall be Customer’s exclusive remedy, and Optrix’s sole obligation and liability, for any breach by Optrix of the foregoing warranty.
5.5	DISCLAIMERS. WITHOUT LIMITING THE DISCLAIMERS IN SECTION 4.4 or 6.3, OPTRIX SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT: (I) SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC NEEDS; (II) SOFTWARE WILL DETECT ANY PARTICULAR FAILURE, FAULT, OR CONDITION, OR PROVIDE ANY PARTICULAR DEGREE OF ADVANCE WARNING OF AN IMPENDING FAILURE, FAULT OR CONDITION OF THE CUSTOMER EQUIPMENT; OR (III) CYBERSECURITY SOFTWARE WILL PROVIDE COMPLETE OR COMPREHENSIVE PROTECTION AGAINST ALL POSSIBLE SECURITY VULNERABILITIES OR UNAUTHORIZED INTRUSIONS.
5.6	Delivery. Unless otherwise specified in an Order, Software will be made available for electronic download by Customer. Optrix shall be deemed to have delivered Software when Optrix makes the Software available for download by Customer. If an Order specifies that Software is to be delivered to Customer on physical media, then delivery of physical media will be made FCA Optrix’s facility (Incoterms 2020). No title to the Software shall be transferred.
5.7	Return or Destruction. Upon the expiration of Customer’s license, or its earlier termination in accordance with this Agreement, Customer shall certify, at Optrix’s written request, the deletion or return of all copies of Software in Customer’s possession.
5.8	Payment Terms. Except to the extent otherwise specified by Optrix in writing, invoices for Optrix Offerings shall be issued pro rata as shipments are made or services performed or made available.  If Optrix consents to delay shipments after completion of any equipment, payment shall become due, title shall pass, and equipment shall be held at Customer’s risk and expense as of the date when Optrix is prepared to make shipment.  Unless otherwise agreed in the Order, payment is due net thirty (30) days from the date of receipt of the invoice.  All payments shall be made without set off for claims arising out of other sales by Optrix. Payment shall be made in the currency quoted.  In the event, Customer raises a genuine dispute that an amount of an invoice issued by Optrix is not payable pursuant to this Agreement,  then Customer shall provide Optrix written notice of such dispute, which includes all relevant detail, within five (5) days of receipt of invoice (“Dispute”).  The Parties agree to attempt to resolve such issue through the Business/operational issue dispute escalation procedure described below.
(a) In the first instance of a dispute regarding the invoicing process described in Section 6.1 above, Optrix and Customer will seek to agree to a resolution within five (5) business days of written notice of the Dispute arising. If the Dispute is not resolved within such five (5) business days, it will be escalated to executives designated by each party, who, unless agreed otherwise, must meet within five (5) days of the escalation to resolve such Dispute. If the Dispute is not resolved within such period, the Dispute escalation will continue with the same maximum time interval up to such executives designated by each party. The parties will work in good faith to quickly minimize the elapsed time in reaching resolution. If any of the individuals in the escalation party are unable to attend a meeting, a delegate authorized to resolve the Dispute may attend in their stead. Provided Customer notifies the Dispute in writing in the time required and otherwise in accordance with Sections 6.1 and 6.1(a), then Customer may withhold payment of the disputed amount pending resolution of the Dispute provided Customer pursues resolution of the Dispute in good faith pursuant to this Section 6.1(a). Optrix may not suspend, cancel, or withdraw the provision of the Software or performance of any other obligations under this Agreement in whole or in part as a result of an invoice dispute under this Section 6.1(a).  
(b) If the dispute is not resolved pursuant to negotiations under Section 6.1(a), then either party may refer the dispute for resolution pursuant to Section 13.12 and Customer shall pay the disputed invoice within five days of a notice referring the dispute for resolution pursuant to Section 13.12, pending resolution under Section 13.12. 
5.9	Late Payments. If an amount payable by Customer pursuant to this Agreement becomes overdue by more than 30 days, then Customer shall pay a monthly late payment charge computed at the rate of 1.5%, or the maximum interest rate permitted by law, whichever is less, on the past due amount for each calendar month (or fraction thereof) that the payment is overdue, calculated from the date on which the amount became due, and Customer shall reimburse Optrix for any and all costs and expenses of Optrix’s collections efforts including reasonable attorney’s fees, and costs associated with compromises and judgments arising therefrom.
5.10	Sales and Similar Taxes.  Optrix shall be responsible for and shall pay any and all corporate and personal income taxes imposed on Optrix and its employees by applicable laws (“Optrix Taxes”). Customer shall be responsible for and shall pay to Optrix all taxes, duties, fees, and other charges of any nature (including, but not limited to, ad valorem consumption, excise, franchise, gross receipts, import, export, license, property, sales and use, stamp, contract duty / registration fees, storage, transfer, turnover, value-added taxes (“VAT”), Business and Occupation or other similar taxes, and any and all items of deficiency, penalty, addition to tax, interest, or assessment related thereto), imposed by any governmental authority of any country in connection with the execution or performance of the Agreement (“Customer Taxes”), but excluding Optrix Taxes . All prices are exclusive of Customer Taxes, which may be added by Optrix to Customer’s invoice if applicable, unless Customer provides a direct pay or exemption certificate to Optrix where permitted by law. If Customer deducts or withholds any Optrix Taxes from payments owed hereunder, Customer shall provide to Optrix, within 30 days from payment, the official receipt issued by the competent government authority to which the Optrix Taxes have been paid, or an alternative document acceptable to the relevant tax authorities. In respect of taxes to be withheld, if any, Customer shall comply with any applicable bilateral conventions against double taxation. The Parties shall reasonably cooperate to claim any available exemptions from tax, fees, or duties that may apply to this Agreement. When Customer arranges the export or intra-European Union (“EU”) community shipment, Customer shall provide to Optrix, free of charge and within 90 days (or, in the case of exports from the U.S., 30 days), evidence (obtained from Customer’s forwarder) of exportation or intra EU community shipment. If the laws in the country in which Optrix performs under this Agreement, or the laws in the country of incorporation of Customer, require the Agreement to be subject to stamp duty, fee, or registration with any local authority, Customer shall be responsible for the required formalities and bear the related costs. Customer shall return to Optrix a copy of the registration certificate or a registered copy of the Agreement within 10 days from the due date required by said laws to apply for such fee, duty, or registration.
6	REPRESENTATIONS AND WARRANTIES.
6.1	General Conditions of Warranty.  The warranties and remedies set forth herein are conditioned upon:  proper storage, installation, use, and maintenance of the Optrix Offering in accordance with the applicable documentation provided to Customer by Optrix, the proper design, operation, and configuration of the system into which the Optrix Offering is installed, conformance with any applicable recommendations of Optrix and the ability of Optrix to reproduce and observe the claimed defect, and prompt notification to Optrix of any defects and, as required, promptly making any personnel and computer systems available.  Any unauthorized modification to or use of the Optrix Offerings by Customer will void the warranty.
6.2	Disclaimer of Implied Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, OPTRIX MAKE NO WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND OPTRIX EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE.
7	OWNERSHIP
7.1	Customer Data. As between Customer and Optrix, Customer retains all rights, title, and interests in and to Customer Data. Except as provided in this Agreement, Optrix obtains no rights under this Agreement from Customer to any Customer Data. Customer consents to the use of Customer Data by Optrix to provide the Optrix Offerings to Customer and to perform Optrix’s obligations under this Agreement
7.2	Reserved Rights. Customer acknowledges that the Optrix Offerings are protected by the copyright, patent, trade secret, trademark, and/or other intellectual property laws of the Australia and other countries. As between Optrix and Customer, Optrix own and reserve all rights, title, and interests in the Optrix Offerings, except those rights and licenses expressly granted to Customer by this Agreement. 
7.3	Restrictions. Except as expressly authorized by this Agreement, Customer shall not (a) sublicense, copy, distribute, modify, or create derivative works of any Optrix Offering, except to the extent authorized in writing signed by Optrix under separate agreements, (b) reverse engineer, disassemble, or decompile any Optrix Offering or apply any other process or procedure to derive the source code of the Optrix Offerings, (c) access or use the Optrix Offerings in a way intended to avoid incurring fees or to exceed usage limits or quotas, or (d) remove, alter, or obscure any proprietary notices that accompany the Optrix Offerings; or authorize or assist others to do any of the foregoing. 
7.4	Suggestions.  If Customer provides Optrix with any feedback or suggested improvements to the Optrix Offerings, then Customer consents to Optrix’s use and implementation of such suggestions, without compensation to Customer, and as between the Parties, Optrix shall solely own products and services developed by or for Optrix from such suggestions.
8	CONFIDENTIALITY.
8.1	Non-Disclosure and Non-Use. A Party receiving Confidential Information (the “Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Party disclosing such Confidential Information (the “Disclosing Party”), use or disclose the Confidential Information or any part thereof for any use other than necessary for the performance of the Receiving Party’s obligations under this Agreement or as otherwise expressly permitted by this Agreement. The Receiving Party shall use reasonable efforts, but not less than those efforts it uses to protect its own information of a similar nature, to avoid disclosure, dissemination, or unauthorized use of the Confidential Information of the Receiving Party.
8.2	Compelled Disclosure. If the Receiving Party is requested by a governmental authority to disclose any Confidential Information, it shall promptly notify the Disclosing Party, to the extent permitted by law, to permit the Disclosing Party to seek a protective order or take other appropriate action and shall assist in such activities. The Receiving Party shall only disclose that part of the Confidential Information as is required by law to be disclosed and the Receiving Party shall use commercially reasonable efforts to obtain confidential treatment therefor.
8.3	Injunctive Relief. In addition to any other rights and remedies under this Agreement or at law, the Receiving Party acknowledges and agrees that, due to the nature of the Confidential Information, its confidentiality obligations to the Disclosing Party under this Agreement are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to the Disclosing Party for which there may be no adequate remedy in damages and accordingly the Disclosing Party shall be authorized and entitled to seek injunctive or other equitable relief.
9	INDEMNIFICATION.
9.1	By Optrix.   Optrix shall, at Optrix’s expense, indemnify Customer against and defend or, at Optrix’s option, settle any claim brought against Customer by a third party that any Optrix Offering infringes any third party’s patent, copyright, trademark, or trade secret of the Berne Convention and WTO countries (an “Infringement Claim”), and pay any final judgments awarded by a court or a tribunal of competent jurisdiction or settlements entered into by Optrix on Customer’s behalf. As a condition of Optrix’s obligation, Customer must notify Optrix promptly of any Infringement Claim in writing, tender to Optrix (whether in Optrix’s own capacity or delegated to Optrix’s Subcontractor) sole control and authority over the defense or settlement of such claim, and reasonably cooperate with Optrix and provide Optrix with available information in the investigation and defense of such claim. Any effort by Customer to settle an Infringement Claim without Optrix’s involvement and written approval shall void any indemnification obligation hereunder. If use of any Optrix Offering becomes, or in Optrix’s opinion is likely to become, enjoined or subject to a valid claim of infringement, Optrix may, at Optrix’s option (in Optrix’s own capacity or through its Optrix’s Subcontractor), (i) procure, at no cost to Customer, the right to use such Optrix Offering, or (ii) modify the Optrix Offering or provide a substitute that is non-infringing. If the foregoing is not commercially reasonable, Optrix may, as applicable: (a) suspend or terminate Customer’s subscription to the affected Software and refund the unexpired portion of the prepaid fees for the suspended or terminated Software, or (b) terminate Customer’s license to the affected Software and refund the pro-rated license fees. Optrix shall have no obligation or liability under this Section for any Infringement Claim to the extent caused by: (a) a modification to the Optrix Offerings not provided or performed by Optrix or Optrix’s Subcontractor, (b) Customer Data and Customer designs and specifications, (c) the combination of the Optrix Offerings with other hardware, software, content, or services not provided by Optrix, (d) use of an infringing Optrix Offering after Optrix has provided a non-infringing alternative, or (e) use of the Optrix Offerings beyond the scope authorized by this Agreement or contrary to applicable documentation. This Section states Optrix’s sole obligation and exclusive liability, and Customer’s sole remedy, for any third-party claims of infringement or misappropriation of any intellectual or proprietary right. 
9.2	By Customer. Customer shall defend and indemnify Optrix, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any of its Users’ use of the Optrix Offerings, other than an Infringement Claim; (b) the legal status of Customer Data or the combination of Customer Data with other applications, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Data or by the use, development, design, production, advertising, or marketing of Customer Data; (c) a dispute between Customer and any User; or (d) personal injury and/or property damage alleged to be caused by Customer’s use of Optrix Offerings to manage Customer equipment. 
10	LIMITATIONS OF LIABILITY.

EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, NEITHER PARTY, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, USE, GOODWILL OR COSTS OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE). 
CUSTOMER IS SOLELY RESPONSIBLE FOR, AND BEARS ALL RISKS ASSOCIATED WITH THE CONTROL, OPERATION, AND USE OF CUSTOMER EQUIPMENT AND CUSTOMER RESPONSIBILITIES SET FORTH IN SECTIONS 4.1 AND 5.3.
   
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CUSTOMER’S CONFIDENTIALITY OBLIGATIONS, CUSTOMER’S OR OPTRIX’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE CUMULATIVE AGGREGATE TOTAL OF TWO TIMES THE AMOUNTS PAID BY CUSTOMER AND THE CUSTOMER AFFILIATES TO OPTRIX FOR THE THE SOFTWARE AND SUPPORT SERVICES. 

THE AFORESAID CAP ON OPTRIX’S LIABILITY SHALL NOT APPLY TO LIABILITY FOR: (i) THIRD PARTY CLAIMS FOR BODILY HARM, DEATH, PERSONAL INJURY, RECTIFICATION OF TANGIBLE PROPERTY DAMAGE, CAUSED BY THE GROSS NEGLIGENCE OF OPTRIX, OPTRIX’S; (ii) FRAUD; (iii) GROSS NEGLIGENCE ON THE PART OF OPTRIX; (iv) BREACH OF OBLIGATIONS BY OPTRIX IN RELATION TO CONFIDENTIAL INFORMATION (EXCLUDING CUSTOMER DATA WHICH IS ADDRESSED ABOVE).  IN THIS SECTION 11, “GROSS NEGLIGENCE” MEANS A DELIBERATE AND WRONGFUL ACT THAT INVOLVES RECKLESS DISREGARD OR WANTON INDIFFERENCE AND CONSTITUTES AN UTTER DISREGARD FOR THE HARMFUL, FORESEEABLE AND AVOIDABLE CONSEQUENCES. 
11	TERM AND TERMINATION.
11.1	Term. The term of this Agreement will commence on the date of execution of this Agreement (Effective Date) and will remain in effect for a period of 12 months (“Initial Term”), as may be extended by written agreement between the parties, unless earlier terminated in accordance with Section 12.3.  
11.2	Subscription terms. Each subscription or license for Software may be for a further period of up to 12 months. Each license or subscription for Software having a fixed and limited initial term may be renewed for successive terms, by the Customer providing and Optrix acknowledging, a Purchase Order for the renewal period, for a renewal term of up to 12 months, at least thirty (30) days prior to the end of the initial or successive term/s. Upon expiry or earlier termination of this Agreement, all subscriptions shall immediately and automatically expire. 
11.3	Termination 
11.3.1	For Convenience.  The Customer may terminate this Agreement, or an Order issued hereunder, for convenience, upon 30 days’ notice.  
11.3.2	For Breach. Either Party may terminate this Agreement for a material breach by the other Party, which breach is not cured within thirty (30) days of written notice provided to the breaching Party, or which breach is incapable of being cured.  
11.3.3	For Insolvency. A Party may terminate this Agreement upon notice to the other Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed, or is the subject of a proceeding under bankruptcy or insolvency law that is not dismissed within thirty (30) days of the filing date thereof (Insolvent). Customer may terminate this Agreement upon notice to Optrix, if Optrix becomes Insolvent and Customer ceases to have access to the Software. 
11.3.4	Effect of Expiration or Termination. The expiration or termination of this Agreement shall terminate the licenses granted and services provided hereunder.  Upon termination or expiration of this Agreement each party will return to the other all Confidential Information of the other party, and Optrix will assist Customer to retrieve all Customer Data stored by Optrix. Optrix may offer to Customer post-termination assistance that Optrix generally makes available to Customers at Optrix’s then-current fees, subject to mutual written agreement. Upon any termination or expiration of this Agreement, the following Sections survive: 6 (Payment), 8 (Ownership),  9 (Confidentiality), 10 (Indemnification), 11 (Limitations of Liability), 12 (Term and Termination), and 13 (Miscellaneous).  
 
12	MISCELLANEOUS.
12.1	Independence.  Optrix and Customer are independent contractors, and neither Party is an agent, partner, employee, employer or joint-venturer of the other for any purpose or has the authority to bind the other. Both Parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other Party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other Party’s products or services.
12.2	No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
12.3	Trade Compliance.  Each Party shall comply with applicable laws that govern the import, export, or re-export of data or materials supplied under this Agreement. Without limiting the foregoing, Customer agrees that it shall not sell, distribute, disclose, release, or otherwise transfer any item or technical data provided under this Agreement to: (i) any country designated as a "State Sponsor of Terrorism" by the U.S. Department of State including, for this Agreement, the countries of Cuba and North Korea (ii) any entity located in, or owned by an entity located in, a "State Sponsor of Terrorism" country, Cuba, or North Korea, (iii) the region of Crimea, or (iv) any person or entity listed on the “Entity List” or "Denied Persons List" maintained by the U.S. Department of Commerce, the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury or any other applicable prohibited party list of the US Government. This clause shall apply regardless of the legality of such a transaction under local law. Except as otherwise agreed in writing between the Parties, each Party shall be responsible for obtaining and maintaining any authorization required for its performance under this Agreement (including the transfer any item or technical data under this Agreement), such as export license, import license, exchange permit or other required government export or import authorization.  Each Party shall provide reasonable assistance necessary for the other Party to secure and comply with such authorizations as may be required. Each Party shall not be liable if any government export authorization is delayed, denied, revoked, restricted or not renewed despite reasonable efforts by the Party. Additionally, such delay, denial, revocation or non-renewal shall not constitute a breach of this Agreement. Customer acknowledges that Optrix may conduct periodic screening of Customer and of its beneficial owners to comply with applicable laws and consents to the foregoing. 
12.4	Language.  All communications and notices to be made or given pursuant to this Agreement must be in the English language.
12.5	Severability and Interpretation.  If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. Any invalid or unenforceable portions shall be interpreted to effect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion shall be severed from this Agreement but the rest of the Agreement shall remain in full force and effect. Section headings are used for convenience only.
12.6	Notices. Either party may provide any notice required or permitted to be given to the other under this Agreement by sending a notice to the mailing or email set forth in the Order or as notified by either party to the other from time to time. Notices provided by registered mail, return receipt requested, will be effective three business days after they are sent. 
12.7	Assignment. Neither Party may assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party, and any assignment in violation of this provision shall be void.
12.8	Entire Agreement. This Agreement is the entire agreement between Customer and Optrix regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Optrix, whether written or oral, regarding the subject matter of this Agreement. 
12.9	Amendments. Any Amendments to this Agreement must be in writing and must be signed by both Parties. No oral agreement, course of dealing, or trade usage shall be deemed to modify this Agreement. 
12.10	Waivers. The failure of a Party to enforce any provision of this Agreement shall not constitute a present or future waiver of such provision or limit a Party’s right to enforce such provision later. All waivers must be in writing and signed by the Party issuing the waiver.
12.11	Choice of Law. This Agreement shall be governed by the laws of the State of New South Wales, Australia, without reference to its conflict of laws provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. 
12.12   Dispute Resolution. If a dispute arises in connection with this Agreement then either party may, by written notice to the other party, refer the dispute to senior representatives of the parties who must act in good faith to resolve the dispute. The notice must expressly state that it is a notice under this Section 13.12 and set out reasonable particulars of the dispute. If a dispute is not wholly resolved within 20 business days after the dispute is referred to the parties’ senior representatives (or such later date as the parties agree in writing), either party may refer the dispute to be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The seat, or legal place, of arbitration shall be Western Australia, Australia. The language of arbitration shall be English. The Emergency Arbitrator Provisions shall not apply. The obligations under this Section shall not apply to any claim (including for injunctive relief) by a Party relating to any actual or alleged infringement of its copyright, patent or patent application, trademark, or trade secret, or for any breach of confidentiality hereunder.
