END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE EULA CAREFULLY. This End User License Agreement (“EULA”) your use of the application, software, their associated upgrades, patches, and updates and related services (the “Software”) currently provided or which will be provided by Optilogic, Inc. ("Optilogic"), a Delaware corporation with its principal place of business at 303 Detroit St. Ste 1, Ann Arbor, MI 48104, or any one of its subsidiaries or affiliated companies.
This EULA sets out the basis on which Optilogic makes the Software available to you (“User” or ”You” or “Licensee”) and on which You may use them. By installing or using the Software, You agree to accept and to be bound by this EULA at all times. If You do not agree with one of these, please do not install or use the Software.
If You have a Optilogic Account and a signed License Agreement, this EULA shall coexist with, and shall not supersede, the License Agreement. To the extent that the provisions of this Agreement conflict with the provisions of the License Agreement, the conflicting provisions in the License Agreement shall govern.
Optilogic reserves the right to change, modify, add or delete articles in this EULA at any time, in accordance with the procedures described below.
1. SOFTWARE LICENSE AND OWNERSHIP
License. Subject to Licensee’s compliance with the terms of this EULA, Optilogic hereby grants to Licensee, and Licensee hereby accepts from Optilogic, a limited, non-exclusive, non-sublicensable, and non-transferable license to use Software, solely for Licensee’s own business operations and consistent with the limitations and conditions set forth in this EULA.
Licensee shall not, directly or indirectly,:
Copy the Software;
Modify, translate, create derivative works, or adapt the Software or merge it into another program;
Reverse engineer, disassemble, decompile, or make any attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software; or
Sublicense, share, rent, resell, lease, distribute, lend, or otherwise transfer any portion of the Software for any purpose other than its own use.
Ownership. Except as set forth herein, Optilogic alone retains all right, title and ownership interest in the Software, products, algorithms, formulas, and services provided under this EULA, including all enhancements, modifications and updates to the Software, products, algorithms, formulas, or services provided under this EULA. Except as set forth herein, Optilogic alone retains all rights, title and ownership interest in any suggestions, ideas, enhancement requests, feedback, recommendations, and other information provided by Licensee to Optilogic related to the Services and/or Software. Except for the license specified above, no right or interest in the Software is granted to the Licensee. THIS EULA IS NOT A SALE AND DOES NOT CONVEY TO LICENSEE ANY RIGHTS OF OWNERSHIP IN OR RELATED TO THE SOFTWARE. As between the parties, Optilogic owns all Performance Data. “Performance Data” means any and all aggregate, de-identified data relating to the access or use of the Software by any User, including any performance, analytics or statistical data, that Optilogic may collect from time to time.
2. TERM AND TERMINATION
The EULA is effective from the earlier of the date You purchase, download or use the Software, until terminated according to its terms. You and Optilogic may terminate this EULA, at any time, for any reason. Termination by Optilogic will be effective upon (a) notice to You or (b) termination of Your Optilogic Account (if any) or (c) at the time of Optilogic’s decision to discontinue offering and/or supporting the Software. This EULA will terminate automatically if You fail to comply with any of the terms and conditions of this EULA. Upon termination for any reason, You must immediately uninstall the Software and destroy all copies of the Software in Your possession.
You are solely responsible for any damage caused to Optilogic, its affiliates, and associated service providers and subcontractors, other users of the Software or any other individual or legal entity as a result of Your violation of this EULA.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED Optilogic AND ITS AFFILIATES, AND ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING ATTORNEYS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS EULA OR (B) YOUR USE OR MISUSE OF THE PRODUCT. Optilogic reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which You agreed to indemnify Optilogic. The provisions of this Section shall remain in force after termination of this EULA.
4. LIMITED REMEDY, WARRANTIES, AND DISCLAIMER
LICENSEE AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SERVICE. OPTILOGIC SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF LICENSEE’S ACCESS TO OR USE OF THE SERVICE OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OPTILOGIC’S ABILITY TO PERFORM THE SERVICE. OPTILOGIC MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
OPTILOGIC’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THE SOFTWARE IS THE CORRECTION OF THE NONCONFORMING SERVICES SOFTWARE. EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION, THE SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS EULA ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. OPITLOGIC HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
5. LIMITATION OF LIABILITY
OPTILOGIC SHALL HAVE NO LIABILITY FOR THIRD PARTY CLAIMS. IN NO EVENT SHALL OPTILOGIC BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES, OR LOST OR IMPUTED PROFITS OR LOST DATA. OPTILOGIC’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS EULA SHALL NOT EXCEED THE LICENSE FEES ACTUALLY RECEIVED BY OPTILOGIC FROM LICENSEE HEREUNDER DURING IN THE TWELVE MONTH PERIOD ENDING ON THE DAY SUCH CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NOTHING IN THIS SECTION 5 SHALL AFFECT OPTILOGIC’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM OPTILOGIC’S GROSS NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The limitations and exclusions set forth in this Section apply to all claims or causes of action on whatever basis and under whatever theory brought and irrespective of whether Optilogic has been advised of the possibility of such claim.
6. CHANGES TO THIS EULA OR TO THE SOFTWARE.
Optilogic reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this EULA for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this EULA by clicking on the “EULA” link located on the Software or on the Optilogic website. You are responsible for checking this EULA periodically for changes. If any future changes to this EULA are unacceptable to You or cause You to no longer be in agreement or compliance with this EULA, You may terminate this EULA in accordance with the termination Section of this EULA and must immediately uninstall the Software and destroy all copies of the Software. Your continued use of the Software following any revision to this EULA constitutes Your complete and irrevocable acceptance of any and all such changes.
Optilogic may modify the Software for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Software. You agree that the Software may install or download the modifications automatically. You agree that Optilogic may stop support of previous versions of the Software upon availability of an updated version.
You may not assign this EULA without the prior, written consent of Optilogic.
8. EXPORT CONTROL
The Software is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Software and Your use of the Software. The Software may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
9. GOVERNING LAW
This EULA shall be governed by and construed in accordance with the laws of the State of Michigan without regard to principles of conflict of laws.
In case any one or more of the provisions contained in this EULA shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this EULA, and this EULA shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this EULA shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
11. NO WAIVER
No waiver by any party of any breach of this EULA shall be a waiver of any preceding or succeeding breach. No waiver by any party of any right under this EULA shall be construed as a waiver of any other right.
12. COMPLETE EULA
This EULA is the final, complete and exclusive EULA of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or EULAs (whether written or oral) between the parties regarding such subject matter.
THIS EULA IS APPLICABLE ONLY TO THE EXTENT AUTHORISED BY LAW.
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