Software as a Service User License Agreement
Provider and Subscriber may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Provider provides access to the Services described in Exhibit A to its Subscribers;
AND WHEREAS, Subscriber desires to access the Services, and Provider desires to provide Subscriber access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) “Aggregated Statistics” means data and information related to Subscriber’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- Exhibit A – Otto Optics Services Description
- Exhibit B – Otto Optics Support and Service Levels
(c) “Authorized User” means Subscriber’s employees, consultants, contractors, and agents;
(i) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement; and
(ii) for whom access to the Services has been purchased hereunder.
(d) “Confidential Information” has the meaning set forth in Section 6, and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
(e) “Subscriber Data” means (other than Aggregated Statistics) information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Subscriber or an Authorized User through the Services.
(f) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Subscriber either electronically or in hard copy form/end user documentation relating to the Services.
(g) “Effective Date” means the first day upon which the commencement of services begins of a new subscription term. Where a Subscriber has had multiple subscription terms, and/or a breakage of services, the effective date for the purposes of the protection of confidentiality will be deemed to be the first date of the commencement of services of the most recent subscription period on record. For greater clarity, this agreement is deemed to be effective, immediately upon the commencement of services.
(h) “Feedback” has the meaning set forth in Section 7(c)
(i) “Fees” has the meaning set forth in Section 5(a).
(j) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(k) “Initial Term” has the meaning set forth in Section 11(a).
(l) “Losses” has the meaning set forth in Section 9(a)(i).
(m) “Notice” has the meaning set forth in Section 12(c).
(n) “Personal Health Information” means health information about an individual that identifies the specific individual; that may be used or manipulated by a reasonably foreseeable method to identify the individual; or that may be linked by a reasonably foreseeable method to other information that identifies the individual, or as otherwise defined by the Personal Health Information Protection Act, 2004, SO 2004.
(o) “Primary Subscriber” shall mean the Subscriber who initiated the Services offered by the Provider and is assumed by the Provider to have the sole authority to administer the subscription.
(p) “Provider IP” means the Services, the Documentation, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Subscriber or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Subscriber’s access to or use of the Services, but does not include Subscriber Data.
(q) “Renewal Term” has the meaning set forth in Section 11(a).
(r) “Service Suspension” has the meaning set forth in Section 2(e).
(s) “Services” means the software-as-a-service offering described in Exhibit A.
(t) “Subscriber” shall refer to the purchaser of the Services provided by the Provider and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
(u) “Term” has the meaning set forth in Section 11(a).
(v) “Third-Party Claim” has the meaning set forth in Section 9(a)(i).
(w) “Third-Party Products” means any third-party products described in Exhibit A provided with or incorporated into the Services.
2. Access and Use
(a) Provision of Access. Subject to and conditioned on Subscriber’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 12(j)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal use. Provider shall provide to Subscriber the necessary passwords and network links or connections to allow Subscriber to access the Services. The total number of Authorized Users will not exceed the number set forth in Exhibit A, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Subscriber a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12(j)) license to use the Documentation during the Term solely for Subscriber’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Subscriber shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Subscriber shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;
(iv) remove any proprietary notices from the Services or Documentation; or
(v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Subscriber in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Subscriber’s and any Authorized User’s access to any portion or all of the Services if:
(i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) Subscriber’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Subscriber or vendor of Provider, (C) Subscriber, or any Authorized User, is using the Provider IP for fraudulent or illegal activities, (D) subject to applicable Law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Provider’s provision of the Services to Subscriber or any Authorized User is prohibited by applicable law;
(ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Subscriber to access the Services; or (iii) in accordance with Section 5(a) (any such suspension described in subclause (i), (ii); or
(iii), a “Service Suspension”. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Subscriber’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Subscriber, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Subscriber acknowledges that Provider may compile Aggregated Statistics based on Subscriber Data input into the Services. Subscriber agrees that Provider may;
(i) make Aggregated Statistics publicly available in compliance with applicable Law, and
(ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Subscriber or Subscriber’s Confidential Information.
3. Subscriber Responsibilities
(a) General. Subscriber is responsible and liable for all uses of the Services and Documentation resulting from access provided by Subscriber, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber. Subscriber shall use all reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Subscriber. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in Exhibit A. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Products, then Subscriber should not install or use such Third-Party Products.
4. Service Levels and Support
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in EXHIBIT B.
5. Fees and Payment
(a) Fees. Subscriber shall pay Provider the fees (“Fees“) as set forth in Exhibit A without off-set or deduction. Fees will be deducted from the total of transaction to which they apply. If Subscriber fails to make any payment when due, without limiting Provider’s other rights and remedies:
(i) Provider may charge interest on the past due amount at the rate of six percent (6%) per annum or, if lower, the maximum amount permitted under applicable Law;
(ii) Subscriber shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and
(iii) if such failure continues for ten (10) days or more, Provider may suspend Subscriber’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Subscriber hereunder, other than any taxes imposed on Provider’s income.
(c) Auditing Rights and Required Records. Subscriber agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Subscriber’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Subscriber has underpaid Provider with respect to any amounts due and payable during the Term, Subscriber shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Subscriber shall pay for the costs of the audit if the audit determines that Subscriber’s underpayment equals or exceeds twenty-five percent (25%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
6. Confidential Information
(a) From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is:
(i) in the public domain;
(ii) known to the receiving Party at the time of disclosure;
(iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
(iv) independently developed by the receiving Party.
(b) The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.
(c) Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required
(i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or
(ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire ten (10) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership and Feedback
(a) Provider IP. Subscriber acknowledges that, as between Subscriber and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Subscriber Data. Provider acknowledges that, as between Provider and Subscriber, Subscriber owns all right, title, and interest, including all intellectual property rights, in and to the Subscriber Data. Subscriber hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Subscriber Data and perform all acts with respect to the Subscriber Data as may be necessary for Provider to provide the Services to Subscriber, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Subscriber Data incorporated within the Aggregated Statistics.
(c) Feedback. If Subscriber or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby assigns to Provider on Subscriber’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Limited Warranty and Warranty Disclaimer
(a) Provider warrants that the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Subscriber’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 8(a). The foregoing warranty does not apply, and provider strictly disclaims all warranties, with respect to any third-party products.
(b) Except for the limited warranty set forth in section 8(a), the provider IP is provided “as is” and provider hereby disclaims all warranties and conditions, whether express, implied, statutory, or otherwise. Provider specifically disclaims all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Except for the limited warranty set forth in section 8(a), provider makes no warranty of any kind that the provider IP, or any products or results of the use thereof, will meet Subscriber’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Subscriber from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) (“Losses“) incurred by Subscriber resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s Canadian intellectual property rights/Canadian patents, trade-marks, copyrights, or trade secrets, provided that Subscriber promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Subscriber agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Subscriber to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Subscriber.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Subscriber Data; or (D) Third-Party Products.
(b) Subscriber Indemnification. Subscriber shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Subscriber Data, or any use of the Subscriber Data in accordance with this Agreement, infringes or misappropriates such third party’s Canadian intellectual property rights and any Third-Party Claims based on Subscriber’s or any Authorized User’s
(i) negligence or willful misconduct;
(ii) use of the Services in a manner not authorized by this Agreement;
(iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or
(iv) modifications to the Services not made by Provider, provided that Subscriber may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. This section 9 sets forth Subscriber’s sole remedies and provider’s sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. In no event will provider’s liability under this section 9 exceed $1,000 CAD.
10. Limitations of Liability
(a) In no event will provider be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
(i) consequential, incidental, indirect, exemplary, special, aggravated, or punitive damages;
(ii) increased costs, diminution in value, or lost business, production, revenues, or profits;
(iii) loss of goodwill or reputation;
(iv) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or
(v) cost of replacement goods or services, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.
(b) In no event will provider’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed three times the total amounts paid and amounts accrued but not yet paid to provider under this agreement in the two-year period preceding the event giving rise to the claim or $1,000, whichever is less.
11. Term and Termination
(a) Term. The initial term of this Agreement begins upon the commencement of services, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until terminated by the part of the Subscriber from such date (the “Initial Term“). This Agreement will automatically renew for additional terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least THIRTY (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Subscriber, if Subscriber: (A) fails to pay any amount when due hereunder, and such failure continues more than TEN (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii)either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii)either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Subscriber shall immediately discontinue use of the Provider IP and, without limiting Subscriber’s obligations under Section 6, Subscriber shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Subscriber’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Subscriber to any refund.
(d) Survival. This Section 11(d) and Section 1, Section 5, Section 6, Section 7, Section 8(b), Section 9, Section 10, and Section 12 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs:
(i) first, this Agreement, excluding its Exhibits;
(ii) second, the Exhibits to this Agreement as of the Effective Date; and
(iii) third, any other documents incorporated herein by reference.
(c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on Exhibit A of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given:
(i) when received, if delivered by hand, with signed confirmation of receipt;
(ii) when received, if sent by a nationally recognized overnight courier, signature required;
(iii) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and
(iv) on the seventh day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
(d) Force Majeure. In no event shall Provider be liable to Subscriber, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(e) Amendments and Modifications. The Provider can modify these Terms and Conditions at any time for any reason including but not limited to making changes: to reflect applicable law, to ensure better Otto Service functionality, to update Otto Service features, and to modify service plans, payment terms, and pricing. Revisions to these Terms and Conditions will be notified to the Subscriber by the Provider via email notice to the most recent email address on record. Continued use of this Service after changes have been made is an acceptance and consent to those changes. The Provider will notify the Subscriber in advance of any material change to these terms and obtain consent to any substantial changes to this agreement. The Subscriber acknowledges that they have read and understand (and agree to be bound by) these Terms and Conditions (as may be amended from time to time) when they use the Otto Service.
(f) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement,
(i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and
(ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of SASKATCHEWAN and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of SASKATCHEWAN or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of SASKATCHEWAN.
(i) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of SASKATCHEWAN and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(j) Assignment. Subscriber may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Subscriber, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(l) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
A. DESCRIPTION OF SERVICES:
Otto Optics System is a software as a service that automates contact lens delivery by providing contact lens retailers with client relationship management software that allows them to offer a streamlined purchasing experience for their patients. Otto is fully integrated and fully automated, offering robust functionality with minimal user input. Otto’s services are free to use in all instances except those instances identified below. A summary of the system’s functionality is as follows:
- Otto-Matic sales generation and fulfillment*
- Integrated order management platform
- Custom e-commerce widget*
- Flexible subscription plans
- Secure credit card payment processing**
- Accept payment in monthly installments (coming soon)
- Electronic payment receipts via email and SMS
- Multi-vendor stock orders
- Complete contact lens product catalog
- Integrated rebate management
- Volume pricing
- Duplicate patient management
- Reduce data entry errors with input validation
- Financial reporting
- Performance insights dashboard (coming soon)
- Trials management with patient follow-up and product replenishment (coming soon)
- Send actionable estimates (coming soon)
- Integration with Practice Management System (coming soon)
- Instant payouts (coming soon)
- Customized patient messaging (coming soon)
- Multiple user types and flexible permissions (coming soon)
- Live Chat support (coming soon)
- Support for multiple locations
- Divide charges between patients and insurance providers (coming soon)
- Patient email capture assistant (coming soon)
- Competitive price comparison (coming soon)
*A service fee is applicable in instances where a patient utilizes Otto’s tools to transact with the eyecare practice
**A 3.15% payment processing fee applies
SERVICE LEVELS AND SUPPORT
Commencing on the date the Service to the Subscriber commences (the “Subscription Term”). Otto will provide Service Level Commitments (“SLC”) (defined in Section 3 below) and Support Services in accordance with the SLC and Support Services Terms as defined herein. In the event of any conflict between the Agreement and the Service Level Commitment and Support Services Terms, the SLC and Support Services Terms will prevail. The SLC and Support Services incorporate the definitions set forth in Section 1 of the Otto User License Agreement.
1. Exhibit Definitions
“Subscriber Core Group” means Subscriber’s employees who have been trained on the Service and who are familiar with Subscriber’s business practices.
“Subscriber User Community” means all users who input, extract or view data in the Service, including all Registered Patients.
“Downtime” means any period, greater than ten minutes, within the Scheduled Available Time during which the Subscriber is unable to access or use the Service because of an Error (as defined below), excluding (i) any such period that occurs during any Scheduled Downtime and/or Recurring Downtime (as defined below), or (ii) document preview, search, FTP or syn functions of the Service.
“Error(s)” means the material failure of the Service to conform to its published functional specifications.
“Excluded” means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Subscriber’s combining or merging the Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Service; (iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Service.
“Priority 1” means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Service across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.
“Procedural Issues” means those issues that are to be addressed by Subscriber through adjustment of a specific business process to accomplish work in the Service.
“Recurring Downtime” means 4 hours per month on the third Saturday of the month from 12:00 A.M. to 4:00 A.M. EST.
“Request” means a modification to the Service outside of the scope of the functional specifications.
“Scheduled Available Time” means 24 hours a day, 7 days a week.
“Scheduled Downtime” means the time period identified by Otto in which it intends to perform any planned upgrades and/or maintenance on the Service or related systems and any overrun beyond the planned completion time.
“Service Uptime” means (total hours in calendar month – unscheduled maintenance which causes unavailability – Priority 1 issue durations – scheduled maintenance – Excluded) / (Total hours in calendar month – scheduled maintenance – Excluded) X 100%.
“Uptime Percentage” means the total number of minutes of Scheduled Available Time for a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes of Scheduled Available Time in such calendar month. Uptime Percentage will be calculated by Otto solely using records and tools available to Otto.
“User Administration Support” means issues that impact the usability of the Service and are addressable through the adjustment of Registered Patient’s access privileges, processes or procedures.
2. Scope of Service Level Commitments
Otto’s obligations do not extend to Errors or other issues caused by:
1. Any modification of the Service made by any person other than Otto;
2. Any third party hardware or software used by Subscriber or any Registered Patients except as otherwise provided in the then current Documentation;
3. The improper operation of the Service by Subscriber or Registered Patients;
4. The accidental or deliberate damage to, or intrusion or interference with the Service;
5. The use of the Service other than in accordance with any User Documentation or the reasonable instruction of Otto;
6. Ongoing test or training instances of the Services provided to Subscriber; or
7. Services, circumstances or events beyond the reasonable control of Otto, including without limitation, any force majeure events, the performance and/or availability of local ISP’s employed by Subscriber, or any network beyond the demarcation or control of Otto.
3. Scheduled Downtime and Guaranteed Uptime
Otto will use commercially reasonable efforts to provide at least 24 hours’ prior notice before undertaking any Scheduled Downtime. Commencing on the effective date of the applicable Subscription Term, in the event the Service experiences an Uptime Percentage of less than 99.9% in any two or more consecutive calendar months, Subscriber will be entitled to a credit (“SLC Credit”) equal to the pro-rated amount of fees applicable to the downtime as measured within the two-month time period. The credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Subscriber requests such credit within twenty (20) days of the end of the relevant calendar month. Notwithstanding anything to the contrary in the Agreement or this section. The SLC Credit is Subscriber’s sole and exclusive remedy for any failure by Otto to meet any performance obligations pertaining to the Service, including, without limitation, any support obligations except as provided in the User License Agreement.
Otto reserves the right to temporarily suspend Subscriber’s or a Registered Patient’s access to the Otto Service as set out in the User License Agreement. Any such suspensions based on repairs, technical problems, outages or maintenance services will be subject to the Service Level Commitments.
4. Availability of SLC Credits
Subscribers who are past due on any payments owed to Otto are not eligible to receive SLC Credits. Otto will issue SLC Credits, as determined in its sole discretion, either on future billing cycles or as a refund against annual fees paid. In order to receive any SLC Credit, Subscriber must notify Otto within 30 days from the time Subscriber becomes eligible to receive a SLC Credit. Failure to comply with this requirement will forfeit Subscriber’s right to receive a SLC Credit. In no event will the total amount of SLC Credits if any, exceed the feed paid by Subscriber for the corresponding month.
5. Support Services
Otto will provide support services to assist Subscriber in resolving Errors (“Support Services”). Support Services do not include (a) physical installation or removal of the API and any Documentation; (b) visits to Subscriber’s site; (c) any electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Service; (d) any work with any third party equipment, software or services; (e) any professional services (“Professional Services”) associated with the Service, including without limitation, any custom development or data modeling.
Otto will provide email and/or phone support as specified at ottooptios.io, excluding Otto corporate holidays, weekends, and national Canadian holidays except where noted.
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