User License and Terms

2.1. Authorization.

Subject to compliance with the terms of this Agreement, Optimize grants You, for the Subscription Term, a revocable, non-exclusive, non-sublicensable, non-transferable to access and the Services solely for Your internal business , pursuant to this Agreement and not for resale or, except as expressly permitted under this Agreement, to deliver services to or for a Tenant. You are responsible and liable for: (a) Your and the Tenant's use of the Services, including any breaches or of this Agreement; (b) any activities using Your access credentials; and (c) the compliance of Your End Users with the terms of this Agreement.

2.2. Software Authorization.

Subject to Your compliance with the terms herein, Optimize grants You, during the Subscription Term, a revocable, non-exclusive, non-sublicensable, non-transferable authorization to: (a) download, reproduce, and use the Software in the relevant Order Document, in quantities as specified therein, for Your and the Tenant's internal business and only as an integral of the Services. The rights to use the Software granted under this subsection do not extend to third parties, and You are not to any such third-party usage, except as specifically under this Agreement. Any copies of the Software made or transferred under this Agreement are licensed, not sold, and You no ownership or title rights to such copies. , You are granted no rights to the Software other than those explicitly stated in this Section 2.2.

2.3. Technical Assistance.

Assistance for the Services will be provided accordance Optimize's support provisions, which are into this document by reference and can be found at https://www.optimize365.io/docs.

2.4. Trial and No-Cost Services.

Should You to utilize any no-cost Services provided by Optimize, such use is solely: (a) within the parameters set for such Services; and (b) in a manner for their intended purpose throughout the Trial Period. Unless agreed otherwise in writing, the "Trial Period" is to last 14 (fourteen) days from the date You initially access or use such Services. Nevertheless, Optimize reserves the right to any trial Services or no-cost Services at any point at its sole discretion, including ending the Trial Period simultaneously for all End Users. If You do not submit Order Document converting the trial Services and/or no-cost Services to a paid subscription during the Trial Period, then such trial Services and/or no-cost Services will terminate upon conclusion of the Trial Period. Upon the expiration of the Trial Period, termination of the trial Services and/or no-cost Services, or termination of this Agreement, You will lose access to the respective Services and any data contained within them. Unless explicitly agreed by Optimize, production data should not be used with the trial Services or no-cost Services. Any use of such services with production data, if agreed, is solely at Your risk. In regard to any trial Services or no-cost Services, You expressly acknowledge that: (i) such services are provided on an "AS-IS" basis without any form of support, indemnity, or warranty, whether expressed or implied; and (ii) any commitments regarding security, compliance, service levels, and privacy made by Optimize in relation to the Agreement do not apply to the trial Services or no-cost Services. OPTIMIZE AND ITS AFFILIATES DISCLAIM ANY LIABILITY RELATED TO THE TRIAL SERVICES, NO-COST SERVICES, AND ASSOCIATED SOFTWARE, EXCEPT WHERE SUCH DISCLAIMER IS LEGALLY UNENFORCEABLE, IN WHICH CASE OPTIMIZE'S TOTAL CUMULATIVE LIABILITY (EXCLUDING LIABILITY FOR INDIRECT DAMAGES, WHICH IS EXPRESSLY DISCLAIMED) ARISING FROM OR RELATED TO THE TRIAL SERVICES AND/OR NO-COST SERVICES SHALL BE LIMITED TO $1,000 USD (OR THE EQUIVALENT IN LOCAL CURRENCY).

3.1. Accounts and Security Credentials.

Access to the Services might necessitate that You or Your End Users establish an account ("Account") associated with security credentials, such as usernames and passwords ("Security Credentials"). You and Your End Users are solely responsible for implementing reasonable security measures to protect your Security Credentials and agree not to disclose any End User's Security Credentials. You must immediately inform Optimize if you become aware of any unauthorized use of Your Security Credentials or any unauthorized access to, or usage of, an Account. You are accountable for ensuring that Your End Users adhere to this Agreement and for all (i) actions or omissions of Your End Users in relation to the Services; (ii) activities occurring under any of Your End User's Accounts; (iii) any misuse, unauthorized use, or compromise of Your Security Credentials. The conduct of Your End Users regarding the Services shall be considered your responsibility.

3.2. Usage Limitations.

As a precondition for your utilization of the Services, You are prohibited from, and must ensure that End Users or third parties do not: (a) copy, alter, or create derivative works based on the Services or Service Documentation; (b) aside from the rights specifically granted to MSPs as further specified under Section 3.3 below, rent, lease, lend, sell, sublicense, distribute, publish, transfer, or otherwise make available the Services or any part thereof to any third party, including via the internet or any time-sharing, service bureau, or similar technology; (c) reverse engineer, disassemble, decompile, or otherwise attempt to access or derive the source code of the Services (except where such actions cannot be prohibited by law); (d) access or use the Services or Service Documentation (if applicable) in a manner that (i) aims to breach, test the vulnerability of, or disrupt the Services or any related accounts, websites, computer systems, networks, devices, data, or servers; (ii) infringes, misappropriates, or violates any intellectual property or other rights of a third party; (iii) violates or causes non-compliance with any applicable laws; (iv) is for competitive analysis, benchmarking, or stress testing of the Services, or for developing, offering, or using competing services or products; (v) to transmit unsolicited advertising or promotions, spam, chain letters, pyramid schemes, or other forms of solicitation; (vi) to circumvent technological restrictions or usage limits of the Services; or (vii) for any purpose or in any manner not explicitly allowed by this Agreement; (e) input, upload, or transmit through the Services any unlawful or harmful information, or any material that contains harmful code; (f) impair, disrupt, or interfere with the Services or Optimize's ability to provide services to any third party, in part or whole; or (g) remove or alter any copyright, trademark, patent, or other intellectual property or proprietary rights notices related to the Services or Service Documentation.

3.3. Provisions for MSPs.

If You are an MSP, Your use of the Services is additionally governed by the terms specified under this Section 3.3. Notwithstanding any other provision in this Agreement, Optimize grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable, and non-assignable right during the Subscription Term to:

4.1. Your Content.

You grant Optimize a non-exclusive, worldwide, royalty-free license to use the data and information that You upload, generate, store, or transmit to the Services ("Your Content") for the following purposes: (a) to fulfill Optimize's obligations under this Agreement; (b) as directed or permitted by You; (c) to maintain and enhance the Services; and/or (d) as mandated by applicable law. Ownership of Your Content remains with You, and Optimize claims no ownership rights over Your Content. You guarantee to Optimize that you own all necessary rights to Your Content, or possess the necessary licenses to use and provide Your Content for the purposes of this Agreement. You are always solely responsible for Your Content and must ensure it complies with this Agreement and all applicable laws and regulations.

4.2. Responsibilities Regarding Your Content.

You assert and guarantee that: (a) You either own or have secured the appropriate license for all of Your Content; (b) You possess all necessary consents, authorizations, and legal permissions required for the processing of Your Content as outlined in this Agreement; and (c) Your Content does not: (i) violate any intellectual property, proprietary rights, contractual obligations, or privacy laws of any party; (ii) contain viruses or any other malicious software that could interrupt, damage, or limit the functioning of any computer software, hardware, or telecommunications equipment; (iii) consist of any unsolicited or unauthorized advertising, promotional efforts, commercial endeavors, "spam," "chain letters," "pyramid schemes," or any other form of unwelcome solicitation; or (iv) engage in any unlawful, harmful, threatening, abusive, harassing, defamatory or other illegal . Optimize reserves the right, but not the obligation, to monitor your use of the Services and Your Content to verify compliance with this Agreement.

4.3. Management of Your Content.

Optimize is not obliged to maintain, return, or delete Your Content except as explicitly described in this Agreement. For evaluation Services or complimentary Services, Your Content may be removed by Optimize without retention or prior notice. As long as you are not in significant violation of this Agreement and are up to date with your payment duties, and contingent upon the functionality of the Services, you may access, export, or delete Your Content at any point before the end of the Subscription Term. If not specifically stated otherwise in this Agreement, Optimize may eradicate all Your Content 30 days after the conclusion or termination of the Subscription Term. However, Optimize may retain Your Content or Confidential Information as part of its standard backup or archival practices or as mandated by law, in accordance with Section 7 (Confidentiality) and any applicable Data Processing Policy.

5.1. Ownership of Services and Software.

Optimize and its licensors will continue to be the exclusive holders of all rights, title, and interest in and to the Services (including the Software and all other software components used to provide the Services, as well as all graphics, user interfaces, logos, and trademarks displayed through the Services), Service Documentation, and Outcome Data, including all derivatives thereof, alongside all Intellectual Property Rights related to them. This Agreement does not confer to you any Intellectual Property Rights in the Services or any of their components, beyond the limited licensing rights to the Software and Service Documentation as expressly outlined herein. Optimize and its licensors reserve all rights not explicitly granted to you in this Agreement.

5.2. Rights to Feedback.

In your use of the Services, you may provide Optimize with feedback, including reports, comments, suggestions, or ideas, concerning the Services, which is referred to as "Feedback." Optimize is under no obligation to implement any Feedback into the Services, and you are not required to offer such Feedback. Optimize does not have to maintain the confidentiality of the Feedback nor treat it as your proprietary information. You hereby grant to Optimize, on behalf of yourself and any End User and each of yours successors, a worldwide, non-exclusive, perpetual, royalty-free license to utilize, disclose, and publish any Feedback. You acknowledge that providing Feedback does not entitle you to any intellectual property rights or any other rights, titles, or interests in any part of the Services.

5.3. Use of Open Source Software.

The Software may incorporate or interact with components governed by open source software licenses ("Open Source Software"). You acknowledge that your use of any Open Source Software component is subject to the specific open source license applicable to that component. OVERE makes no representations or warranties concerning, and assumes no liability for, the use of such Open Source Software.

8.1. Fees.

You are obligated to pay the prescribed Fees to Optimize or a Distributor, without any reductions or withholdings. Unless specified differently in this Agreement or in any Order Document: (a) Fees for the Subscription Term will be invoiced by Optimize or a Distributor in advance; (b) all Fees are fixed and non-refundable; and (c) quantities purchased cannot be reduced during the Subscription Term. Optimize may increase existing prices on the twelve-month anniversary of the start of the applicable Subscription Term. Optimize also reserves the right to raise Fees (i) upon renewal (including automatic renewals) and (ii) with greater frequency or amount, provided that thirty (30) days' advance written notice is given. Your continued utilization of the Services following any Fee adjustment signifies your consent to such changes.

8.2. Excess Usage.

Should you surpass the seats, licenses, or other specified quantities in the applicable Order Documentation, or otherwise exceed authorized usage ("Excess Usage"), you agree to pay the corresponding Fees for such Excess Usage. If you fail to pay these fees, Optimize retains the right to either suspend or reduce your use of the Services to align with the quantities specified in the Order Documentation.

8.3. Payment and Tax Responsibilities.

Unless specified otherwise in the relevant Order Document, (a) payments are due within seven (7) days from the date of the invoice and (b) all Fees are quoted exclusive of Applicable Taxes, import duties, and shipping and handling charges, all of which are your responsibility. You agree to indemnify, defend, and hold Optimize harmless from any liabilities or costs arising from the non-payment or collection of any Fees, Applicable Taxes, import duties, or shipping and handling charges.

8.4. Right to Audit.

You accept that Optimize has the right to audit Your and each End Users use of the Services to ensure adherence to the financial terms of this Agreement or any applicable Order Document. Audits may be conducted by Optimize's staff or by an independent third-party auditor designated by Optimize. If an audit reveals that Your use of the Services breaches this Agreement (including any use by an End User) or that there has been an underpayment of Fees due to excess usage, you will reimburse Optimize for the audit costs, settle any outstanding amounts, and adjust your usage of the Services to comply with this Agreement.

8.5. Consequences of Late Payment.

Any unpaid Fees will incur interest at the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, whichever is lower, calculated from the payment due date until fully paid. You are responsible for all of Optimize's expenses incurred in collecting overdue fees, including reasonable legal fees.

9.1. Subscription Term.

The duration for which you are authorized to use the Services corresponds to the specified Subscription Term. Unless stated otherwise in the Order Documentation, all subscriptions to the Services will renew automatically unless you provide a written notice of non-renewal at least 30 days before the renewal date. If no specific renewal term is mentioned in the Order Documentation, the renewal term will match the length of the initial subscription period, with a minimum of no less than 12 months. If you decide to terminate during the Subscription Term, (a) you will retain access to the Services until the end of the current Subscription Term, (b) you are obliged to pay all Fees for the duration of the current Subscription Term, and (c) you will not be entitled to any refunds or credits for any Fees already due or paid.

9.2. Termination Rights.

Optimize reserves the right to terminate this Agreement and/or your access to the Services immediately upon providing written notice to You, under the following circumstances: (a) you fail to remedy a material breach of this Agreement within thirty (30) days after receiving written notification of such breach; (b) you become insolvent or are otherwise unable to meet your debt obligations when they come due; (c) you initiate a bankruptcy, reorganization, or similar proceeding, or if such a petition is filed against you and not dismissed within forty-five (45) days; (d) you cease your business operations; or (e) an appointment of a receiver occurs or there is an assignment for the benefit of your creditors.

9.3. Suspension of Services.

As part of its legal and equitable remedies, Optimize may, at its sole discretion, suspend Your or any End User's access to all or part of the Services if: (a) there is a risk to the security or integrity of the Services; (b) you materially violate the terms of this Agreement; or (c) any outstanding fees remain unpaid ten (10) days past the due date. Optimize will endeavor to provide prior notice of any such suspension and to restore access once the issue leading to the suspension is resolved. Optimize will not be liable for any losses or damages you may suffer due to any such suspension.

9.4. Consequences of Termination or Expiration.

Upon the termination or expiration of a Subscription Term or this Agreement for any reason, all granted rights, licenses, and authorizations will cease immediately, and you and your End Users must: (a) cease all use of the Services; (b) delete any associated Software; and (c) return any Optimize equipment used in connection with the Services or allow Optimize access to retrieve such equipment, as directed by Optimize. Furthermore, all outstanding Fees owed to Optimize will become immediately due and payable upon the effective date of termination. Following termination or expiration, Optimize may delete Your Content any time after 30 days from the date of termination or expiration.

9.5. Provisions Post-Termination.

Certain sections of this Agreement will continue to apply even after termination or expiration, including Sections 2.5 (Trial and Complimentary Services); 3.2 (Usage Limitations); 4 (Content); 5 (Intellectual Property Rights); 7 (Confidentiality); 8 (Fees, Payments, and Taxes); 10 (Warranties); 11 (Indemnity); 12 (Limitation of Liability) and 13 (Dispute Resolution) ; and any other clauses that inherently extend beyond the termination or expiration of the Agreement.

10.1. Limited Warranty.

Optimize guarantees that the Services, when utilized in accordance with this Agreement, will perform substantially as detailed in the Order Document. This warranty does not cover: (i) Services used in violation of this Agreement; (ii) alterations, modifications and/or adjustments made to the Services by You or any third party; (iii) damage resulting from accident, misuse, or improper application by you; or (iv) evaluation Services.

10.2. Disclaimer of Warranties.

10.3. Application Marketplace Purchases.

If you acquire the Services through an Application Marketplace, you acknowledge that: (a) Optimize makes no warranties regarding the Application Marketplace; (b) Optimize disclaims all warranties related to the Application Marketplace; and (c) your compliance with the Application Marketplace's terms is your responsibility, and Optimize is not liable for any violations of such terms by you.

11.1. Infringement Indemnity.

Optimize will cover reasonable costs and damages awarded by a court or agreed upon in a settlement under a claim for infringement and/or misappropriation of the Services and/or the Software of any 3rd party right, with all conditions of this section met. This defense will not apply if the infringement claim results from: (a) modifications to the Services not made by Optimize; (b) use of the Services with non-Optimize software, hardware, or technology; or (c) use of the Services contrary to this Agreement or the Service Documentation. You will indemnify Optimize against any claims arising under these circumstances. Optimize is not responsible for defending or indemnifying against any claims arising from evaluation Services.

11.2. Conditions to Defense.

Optimize's obligation to defend is contingent upon you: (a) promptly notifying Optimize in writing within 10 days of becoming aware of the claim; (b) not admitting any liability on behalf of Optimize; (c) not settling any claim without Optimize's prior written consent; (d) cooperating with Optimize in the defense and settlement of the claim; and (e) allowing Optimize full control over the defense and settlement of the claim.

11.3. Mitigation and Exclusive Remedy.

Should the Services be, or in Optimize's opinion likely to be, accused of infringement, Optimize will at its own cost: (a) secure for you the rights to continue using the Services; (b) modify the Services to make them non-infringing while retaining equivalent functionality; or (c) terminate the Services and refund any prepaid, unused fees. These actions constitute your sole and exclusive remedy for any such claims of infringement.

11.4. Indemnification by You.

You agree to defend, indemnify, and hold harmless Optimize, its affiliates, and their respective directors and employees from any damages, losses, claims, and expenses arising from: (a) the use, processing, or management by Optimize of Your Content in connection with the Services; (b) the use of the Services by You or Your End Users in violation of Section 3.2 (Usage Limitations); or (c) breaches of this Agreement by You or Your End Users. Provided, however, for claims where a third party is involved, you may not settle such claims without Optimize's explicit consent, and Optimize retains the right to defend itself or participate in the defense of any such claims with counsel of its choice.

12.1. EXCLUSION.

12.2. LIABILITY CAP

14.1. Entire Agreement.

This Agreement constitutes the complete and exclusive agreement between the parties, superseding all prior agreements and communications (both written and oral) regarding the subject matter herein. Any terms provided in a purchase order that attempt to amend or contradict this Agreement are null and void.

14.2. Order of Precedence.

Should there be any inconsistency between the documents that make up this Agreement, the terms in the Order Documentation will take precedence over this License.

14.3. Waiver.

No waiver of any rights under this Agreement will be effective unless in writing and signed by a duly authorized representative of the waiving party. A waiver in one instance will not be presumed to be a waiver of any subsequent breach.

14.4. Relationship of the Parties.

The relationship established by this Agreement is that of independent contractors. This Agreement does not create a partnership, agency, joint venture, or employment relationship between the parties. Neither party is authorized to make commitments or representations on behalf of the other.

14.5. Assignment.

This Agreement does not confer any benefits on third parties. You may not assign or transfer any of your rights or obligations under this Agreement without the prior written consent of Optimize. Any unauthorized assignment shall be deemed null and void. This Agreement binds and benefits the parties and their respective permitted successors and assigns.

14.6. Compliance with Export Laws.

The Services, including associated Software, documentation, and technical data, may be subject to U.S. and international export control laws. You agree to comply fully with all such laws and regulations as they relate to the Services, including obtaining any required licenses to export, re-export, or import the Services. You will not utilize the Services in any manner that violates applicable export regulations, which include restrictions on destinations, end users, and end use. By using the Services, you affirm that neither you nor any recipient of the Services is located in an embargoed country or on any denied persons lists maintained by the U.S. and/or Israeli governments.

14.7. Force Majeure.

Optimize does not oversee the transmission of data to or from the Services, which largely depends on the performance of internet services, technologies from third-party providers, and the infrastructure of the public internet, all of which are beyond Optimize's direct control. Occasionally, actions or inactions by these third parties, or other circumstances outside of Optimize's control, may impede, disrupt, or delay Optimize's provision of the Services or your access to them. Despite any provisions to the contrary in this Agreement, Optimize will not be held accountable for, and you agree not to hold Optimize liable for, any issues arising from such external actions or events. This includes, but is not limited to, acts of God, governmental actions, unavailability of third-party communications facilities or energy supplies, fires, delays in transportation, or any other events beyond Optimize's reasonable control.

14.8. Notices.

Unless otherwise indicated in this Agreement, all notices directed to Optimize must be in writing and will be deemed effective five (5) days after being mailed or immediately when sent via email, addressed to [email protected]. Notices to you under this Agreement will be considered effective: (a) immediately upon sending to the email address associated with your use of the Services, (b) upon delivery via an in-product message, or (c) five (5) days after being sent by certified mail, return receipt requested and postage prepaid, to the address listed in any Order Document. It is your obligation to ensure that Optimize, or the Distributor as applicable, is informed of any changes to your email address.

14.9. Publication.

Optimize reserves the right to include your name in a list of Optimize customers, both online and in promotional materials.

14.10. Severability.

If any term of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, the court shall modify the provision to the minimum extent necessary so that it conforms to the law and reflects the intent of the original term as closely as possible. All remaining provisions will continue in full force and effect.