Optim360 End User’s License Agreement
For: The Licensed Software, Optim360, hereinafter as (“Licensed Software”)
The Licensed Software “Optim360” was created in cooperation with Smart PC Solutions, Inc. and Avanquest Software SAS.
Before you use the Licensed Software, please read this EULA as carefully as you would read any other legal document. This End User License Agreement (EULA) is a contract between you (“you,” “your” or “Licensee”) and Optim360, which provides the terms and conditions under which the Licensed Software named above is licensed – not sold – to you. The Licensed Software includes computer software and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services.
If you are residing in, located in, or a citizen of the United-States when purchasing the Licensed Software, please be aware that this EULA provides for Class Action Waiver (as set forth below, the “Class Action Waiver” provision) and for your Disputes (as defined below) with Optim360 to be referred to binding Arbitration (as set forth below, in the “Dispute Resolution” provision), which may affect your rights under this EULA. You may opt out of the binding individual arbitration and class action waiver as provided below.
The “Licensed Software” includes all of the contents of the files, disk(s), CD-ROM(s), DVDs, or other media for which this EULA is provided, including:
- third-party computer information or software that Optim360 has licensed for inclusion in the Licensed Software;
- written materials or files relating to the Licensed Software (“Documentation”);
- upgrades, modified versions, updates, additions, and copies of the Licensed Software, if any (collectively, “Updates”).
INSTALLATION AND ACTIVATION.
Unless Licensee has purchased a Site License Agreement, Licensee may only install and/or use one copy of the Licensed Software per user license included with the Licensed Software. To determine how many user licenses were included with the Licensed Software, the Licensee should consult the Licensed Software packaging or, in the case of Licensed Software purchased via electronic download, Licensee’s order receipt. If you desire additional user licenses for the Licensed Software, you may purchase them from the user portal at our website for the prices designated on such website. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software.
The Licensed Software contains technological measures that are designed to prevent its unlicensed or illegal use. The Licensed Software may contain enforcement technology that limits Licensee’s ability to install and uninstall the Licensed Software on a machine to no more than a finite number of times, and for a finite number of machines, to ensure that you comply with the terms of this EULA and do not exceed the maximum number of user licenses you have purchased.
The Licensed Software may require activation as explained during installation process and in the Documentation. Such activation may require you to submit a serial number and register an account with us. (Note that if you are installing a trial version of the Licensed Software, you may not need a serial number to activate it, but we may limit the length of time for which you may use the Licensed Software and/or the scope of the Licensed Software Functionality.) If activation is required and not completed within the finite period of time set forth in the Documentation and/or explained during installation, then the Licensed Software will cease to function until activation has been completed, at which time functionality will be restored. If Licensee has any problem with the activation process, Licensee should contact Optim360 at [email protected].
The Licensed Software is designed for use on physical devices (i.e., desktop & laptop computers) and may not function fully on virtual machines.
The Licensed Software may require an internet connection to be available in order to access all features.
See the specific provisions below that disclaim warranties and limit our liability based on internet service interruptions and unavailability.
PERSONAL DATA PROTECTION
Licensee may only make one copy of the Licensed Software for backup or archival purposes only, except that the Documentation may not be duplicated.
Licensee may not sell, assign, sublicense, rent, lease, lend or otherwise transfer the Licensed Software or the License granted by this EULA without prior written consent of Optim360.
The License granted by this EULA is non-exclusive. Licensee may not use the Licensed Software except as expressly permitted by this License.
- Licensee may not modify, alter, adapt or translate all or any portion of the Licensed Software;
- Licensee may not create any derivative works from all or any portion of the Licensed Software;
- Licensee may not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software;
- Licensee may not use a previous version of the Licensed Software after receiving a media replacement or upgraded version as a replacement to a prior version (in such case you must destroy the prior version);
- Licensee may not use the Licensed Software in the operation of aircraft, ship, nuclear facilities, life-support machines, communication systems, or any other equipment in which the failure of the software could lead to personal injury, death, or environmental damage;
- Licensee may not remove or obscure Optim360’s copyright or trademark notices, or the copyright and trademark notices of third parties that Optim360has included in the Licensed Software; and
- Licensee may not use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement; and
- Licensee may not use the Licensed Software in any manner not authorized by this EULA.
If the Licensed Software is an update of a previous version, Licensee must possess a valid License to the previous version. Any update provided to a Licensee is made on a License-exchange basis such that Licensee agrees, as a condition for receiving an Update, that Licensee will terminate all of Licensee’s rights to use any previous version of the Licensed Software. However, the Licensee may continue to use the previous version only to assist in transitioning of the Updated version. Once an Update has been released, Optim360 may cease support for prior versions, without any notice to the Licensee.
Optim360 may provide Updates to the content of some of its software from time to time, including but not limited to, virus definitions, URL lists, rules, driver database updates, and updated vulnerability data. These types of Updates are collectively referred to as “Content Updates.” Optim360 may, at its discretion and without notice, add, modify or remove features, including Content Updates, from the Licensed Software at any time.
Optim360 is not obligated by this EULA to provide a Licensee with any technical support services relating to the Licensed Software; however, Licensee may purchase additional support services for an additional charge as Optim360 may offer from time to time during the term of this EULA.
You are a consumer. Nothing in this contract should prevent you from availing the benefit of rights granted to you by applicable consumer regulation.
This EULA is subject to, and will be governed by and construed in accordance with the substantive laws of France, to the extent permitted by applicable consumer law. This EULA will not be governed by the conflict of law rules of any jurisdiction, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
IF YOU ARE RESIDING IN, LOCATED IN, A CITIZEN OF CANADA, EUROPEAN UNION MEMBER STATE, OR RESIDING ANYWHERE OTHER THAN THE UNITED-STATES, WHEN PURCHASING THE LICENSED SOFTWARE, THE FOLLOWING DISPUTE RESOLUTION MECHANISM APPLIES TO YOU:
Any dispute arising out of, or in connection with this EULA shall be referred to the exclusive jurisdiction of the Courts of British Colombia, Canada, to the extent permitted by the consumer law of your usual place of residence.
IF YOU ARE RESIDING IN, LOCATED IN, or A CITIZEN OF THE UNITED-STATES, WHEN PURCHASING THE LICENSED SOFTWARE THE FOLLOWING DISPUTE RESOLUTION MECHANISM MAY APPLY TO YOU:
This provision facilitates the prompt and efficient resolution of any Dispute that may arise between you and ESmart Solutions Pte. Ltd. Arbitration is a form of private dispute resolution in which people with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your Disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and Optim360 (as defined below, for this Provision) shall be resolved by the binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Provision, “ESmart Solutions Pte. Ltd.” means Optim360 and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Optim360 regarding any aspect of your relationship with Optim360, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
EACH OF US AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY THE BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in the court or arbitration, you must first give Optim360 an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Optim36, Avanquest Software SAS Legal Department, 92250 La Garenne Colombes – France. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If Optim360 does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in the arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or Optim360 may choose to pursue a Dispute in the court and not by the arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST GAVE CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing a written notification to Optim360, Legal Department, 300 – 422 Richards Street, Vancouver, BC, V6B 2Z4, Canada. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Optim360through arbitration. Your decision to opt-out of this Provision will have no adverse effect on your relationship with Optim360. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures. If this Provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Optim360 may initiate arbitration proceedings. JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
The JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because this EULA and the Licensed Software concerning interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or Optim360 may initiate arbitration in either Los Angeles, California or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, Optim360 may transfer the arbitration to Los Angeles, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs. Optim360 will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Optim360 as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Optim360 specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above in section “Exclusions from Arbitration/Right to Opt Out”, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Licensed Software can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver. You understand and agree that by entering into this agreement you and Optim360 are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Optim360 might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Review by Arbitrator. Any dispute regarding this Provision, including the enforceability of this Provision or the arbitrability of any Dispute as provided in this Provision, shall be for the arbitrator to determine.
Continuation. This Provision “DISPUTE RESOLUTION” shall survive the termination of your use of the Licensed Software and any related Optim360 websites or services.
LIMITED WARRANTY ON MEDIA.
Optim360 warrants that the media on which the Licensed Software is distributed will be free from material defects for a period of 30 days from the date the Licensed Software is delivered to Licensee. If the Licensee discovers a defect in the media during this 30-day period, he/she may return the defective media to Optim360, and the Licensee’s sole remedy is to have either the defective media replaced, or at ESmart Solutions Pte. Ltd.’s sole option, a refund of the money that the Licensee paid for the Licensed Software.
NO WARRANTY ON LICENSED SOFTWARE.
THE LICENSED SOFTWARE (EXLUDING THE MEDIA ON WHICH IT IS DISTRIBUTED) AND ALL Optim360 RELATED WEBSITES AND SERVICES ARE PROVIDED TO LICENSEE “AS IS” AND “AS AVAILABLE,” AND Optim360 AND ITS SUPPLIERS AND LICENSORS PROVIDE NO WARRANTY TO THEIR USE OR FOR PERFORMANCE. Optim360 AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION: QUALITY, AVAILABILITY, PERFORMANCE OR FUNCTIONALITY OF THE LICENSED SOFTWARE OR ANY RELATED Optim360WEBSITES OR SERVICES; QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE LICENSED SOFTWARE OR RELATED Optim360 WEBSITES OR SERVICES; ANY REPRESENATION OR WARRANTY THAT THE USE OF THE LICENSED SOFTWARE OR ANY RELATED Optim360WEBSITES OR SERVICES WILL BE UNINTERRUPTED OR ALWAYS AVAILABLE (WHETHER DUE TO INTERNET FAILURE OR OTHERWISE), ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR OPERATE ON OR WITH ANY PARTICULAR HARDWARE, PLATFORM OR SOFTWARE; NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND ONLY TO THE EXTENT, THAT A WARRANTY MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION.
LIMITATION OF LIABILITY.
IN NO EVENT WILL Optim360, OR Optim360’S SUPPLIERS OR LICENSORS, BE LIABLE TO LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER, OR FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNATIVE, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS (INCLUDING WITHOUT LIMITATION THOSE BASED ON THE USE OR THE INABILITY TO USE THE LICENSED SOFTWARE OR ANY Optim360RELATED WEBSITES OR SERVICES), EVEN IF A REPRESENTATIVE OF Optim360OR ONE OF ESmart Solutions Pte. Ltd.’S SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. IN ANY CASE, THE AGGREGATE LIABILITY OF Optim360, AND Optim360’S SUPPLIERS, UNDER OR IN CONNECTION WITH THIS EULA, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, OR 5 EUROS.
ADDITIONAL TERMS FOR BETA SOFTWARE.
If the Licensed Software that a Licensee receives with this EULA is pre-commercial release or “BETA” software (“Pre-release Software”), then, to the extent that any provision in this section is in conflict with any other term or condition in this EULA, this section supersedes such conflicting term(s) and condition(s) as to the Pre-release Software, but only to the extent necessary to resolve the conflict.
Licensee acknowledges that the Pre-release Software does not represent the final product from Optim360, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, Optim360 disclaims any warranty or liability obligations to the Licensee of any kind whatsoever.
IN APPLICABLE JURISDICTIONS WHERE LIABILITY CANNOT BE SO EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT MAY BE LIMITED, Optim360’S LIABILITY, AND THAT OF ITS SUPPLIERS, SHALL BE LIMITED TO THE TOTAL OF FIFTY EUROS (50 EUR).
The Licensee acknowledges that Optim360 has not promised or guaranteed that the Pre-release Software will be announced or made available to anyone in the future, and that Optim360 has not expressed or implied obligation to the Licensee to announce or introduce the Pre-release Software. Optim360 may decide not to introduce a product similar to, or compatible with, the Pre-release Software. Accordingly, the Licensee acknowledges that any research or development that the Licensee performs regarding the Pre-release Software, or any product associated with the Pre-release Software, is done entirely at Licensee’s own risk.
During the term of this EULA, if requested by ESmart Solutions Pte. Ltd., the Licensee will provide feedback to Optim360 regarding testing and use of the Pre-release Software, including error or bug reports.
If Licensee has been provided the Pre-release Software pursuant to a separate written agreement, then Licensee’s use of the Pre-release Software is also governed by that agreement. Notwithstanding anything in this EULA to the contrary, if Licensee is located outside the United States, Licensee will return or destroy all unreleased versions of the Pre-release Software within 30 days of the completion of Licensee’s testing of the Pre-release Software if that date is earlier than the date scheduled for Optim360’s first commercial shipment of the publicly released (commercial) software.
SURVIVAL OF DISCLAIMERS.
The exclusions of warranties and liability limitations shall survive the termination of this EULA, howsoever caused; but this survival shall not imply or create any continued right to use the Licensed Software after termination of this EULA.
Licensee shall not ship, transfer, or export Licensed Software into any country or use Licensed Software in any manner prohibited by the applicable export control laws, notably where applicable, the United States Export Administration Act, restrictions, or regulations (collectively the “Export Laws.”) All rights to use the Licensed Software are granted on condition that Licensee complies with the Export Laws, and all such rights are forfeited if Licensee fails to comply with the Export Laws.
INTELLECTUAL PROPERTY OWNERSHIP.
The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, Optim360, and by third parties whose intellectual property has been licensed by ESmart Solutions Pte. Ltd. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Optim360 and such third parties. The Licensed Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly provided in this EULA, the Licensee is not granted any intellectual property rights in the Licensed Software.
RESERVATION OF RIGHTS.
Optim360 reserves all rights not expressly granted to the Licensee by this EULA. The rights granted to the Licensee are limited to Optim360’s intellectual property rights, and the intellectual property rights of third parties licensed by Optim360. All rights are reserved under the copyright laws of France and/or of other countries, to Optim360, Avanquest Software SAS Legal Department, 92250 La Garenne Colombes – France.
COMPLETE AGREEMENT and BINDING EFFECT.
This EULA constitutes the entire agreement between the Licensee and Optim360 relating to the Licensed Software, and it supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating the Licensed Software. This EULA is binding on and made for the benefit of the parties and their successors and permitted assigns.
This EULA may only be modified, supplemented or amended by a writing signed by an authorized officer of Optim360.
Except as provided in the “Dispute Resolution and Arbitration” Provision, if any provision of this EULA is determined by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
No failure or delay by Optim360 in exercising its rights or remedies shall operate as a waiver unless made by ESmart Solutions Pte. Ltd.’s specific written notice. No single or partial exercise of any right or remedy of Optim360 shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
PROOF OF COMPLIANCE.
Within 30 calendar days after request from Optim360, or Optim360’s authorized representative, Licensee will provide full documentation, and certify under penalty of perjury, that Licensee’s use of any and all Licensed Software is in conformity with this EULA.
If a Licensee breaches this EULA, and fails to cure any breach within 30 calendar days after the request from Optim360, or Optim360’s authorized representative, Optim360 may terminate this EULA, whereupon all rights granted to the Licensee shall immediately cease. Furthermore, upon termination, the Licensee shall return to Optim360 all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed.
If for any reason you, the Licensee, are dissatisfied with the Licensed Software you may obtain a refund of the paid amount for the Licensed Software within 30 calendar days after acquiring it, by contacting Optim360 at [email protected] to obtain the refund. Once you receive the refund, the License granted by this EULA is no longer valid and any use of the Software will infringe Optim360’s copyright rights.