Effective date: January 1, 2025
Last updated date: January 1, 2025
1. INTRODUCTION
1.1. Welcome to Optery for Business. This agreement (the “Agreement”), made and entered into as of the date you agree to its terms and create your Optery for Business account (“Effective Date”) between Optery, Inc., a Delaware Corporation with address 6150 Center St #121, Clayton, CA 94517 (“Optery”) and you on behalf of your organization (“Customer”), includes and incorporates any Orders previously or subsequently entered into by the Parties. This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations.
1.2. This Agreement constitutes the entire agreement, and supersedes and cancels all prior agreements, between Optery and Customer regarding the subject matter hereof, unless there exists a separate valid written agreement jointly signed and executed by authorized representatives of both Optery and the Customer related to the Services (as defined below). If at least one such different valid agreement exists, they(it) take(s) precedence and supersede(s), cancel(s), and render(s) this agreement invalid.
1.3. Optery may amend this Agreement from time to time, in which case the new Agreement will supersede and cancel prior versions. If we make materially significant changes to this Agreement, we will send you an email notification along with a summary of changes to the primary email address of each Administrator on your account.
1.4. This Agreement covers important information about the Services provided to you and any charges, taxes, and fees we bill you. Your use of the Services in any way means that you agree to all of this Agreement, and this Agreement will remain in effect while you use the Services. If you already created an Optery for Business account, but no longer agree to the terms of this Agreement, please contact us at support@optery.com for assistance in terminating your account. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: support@optery.com
Address: 6150 Center St #121, Clayton, CA 94517
2. DEFINITIONS
2.1. “Administrators” means the Customer-designated personnel who administer the Services on Customer’s behalf.
2.2. “Administrator Dashboard” means the online Administrator-facing web-platform provided by Optery to Customer for administering and managing the Services.
2.3. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a Party, where control is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
2.4. “Business Contact Data” means personal information that relates to Optery’s relationship with Customer, including, by way of example and without limitation, data Optery collects for the purpose of managing its relationship with Customer or as otherwise required by applicable laws, rules, or regulations.
2.5. “Confidential Information” means any nonpublic or proprietary information disclosed by a Party (“Discloser”) to the other Party (“Recipient”) that is in written, graphic, machine readable, oral, or other form and that (a) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature or (b) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential. For clarity, the terms of this Agreement and all pricing information under this Agreement is the Confidential Information of Optery. Confidential Information does not include any information that (i) was publicly available prior to the time of disclosure by the Discloser, (ii) becomes publicly available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient, (iii) is already in the lawful possession of the Recipient at the time of disclosure, (iv) is obtained by the Recipient from a Third Party without a breach of such Third Party’s obligations of confidentiality, or (v) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information. For the purposes of this Agreement, “Customer Confidential Information” refers to Confidential Information for which Customer is a Discloser, and “Optery Confidential Information” refers to Confidential Information for which Optery is a Discloser.
2.6. “Customer Data” means any names and contact information of Administrators and Users uploaded or otherwise transmitted by or from Customer or an Administrator through the Administrator Dashboard for the purpose of providing the Services; provided that, for clarity, Customer Data as defined herein does not include Business Contact Data, User Data, or Usage Data.
2.7. “Order” means a purchase order, order form, online order, or any other ordering document, mechanism, or process that references this Agreement and is signed or electronically confirmed by the Parties.
2.8. “Party” means Customer and Optery individually; collectively, Customer and Optery are referred to as the “Parties.”
2.9. “Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, business, association, or other entity.
2.10. “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
2.11. “Privacy Policy” means the Optery Privacy Policy found on Optery’s website at https://www.optery.com/privacy-policy/ as updated from time to time by Optery in its sole discretion.
2.12. “Services” means, collectively: (a) the Administrator Dashboard; and (b) the data removal services made available by Optery to Customer via the Administrator Dashboard, as may be further described on an Order.
2.13. “Terms” means, collectively, the “Terms of Service” for the User Platform found on Optery’s website at https://www.optery.com/terms-of-service/ and any additional terms that may apply to Users for any new applications, features, or functionality for the User Platform that Optery makes available from time to time, each as updated from time to time by Optery in its sole discretion.
2.14. “Third Party” means any Person other than Optery, Customer or any of their respective Affiliates.
2.15. “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Services.
2.16. “Usage Data” means usage data collected and processed by Optery in connection with Customer’s and Administrators’ use of the Services, including, without limitation, data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
2.17. “User” means Customer’s employees, consultants, contractors, customers, and agents for whom access to the Services has been purchased hereunder.
2.18. “User Data” means any data or other information provided by Users to Optery via the User Platform.
2.19. “User Platform” means the online User-facing web-platform and data removal services made available by Optery to Users in accordance with and subject to the Terms.
3. SERVICES; USER PLATFORM
3.1. Services; User Platform. Subject to Customer’s continuing compliance with its obligations set forth in this Agreement, during the Subscription Period, Optery will make available: (a) the User Platform for use by Users pursuant to the Terms; and (b) the Services for use by Customer and its Administrators, in each case: (i) only as provided herein; (ii) only for Customer’s and its Users’ respective internal use; (iii) only in accordance with Optery’s applicable official user documentation for such Services or the User Platform (as applicable) (the “Documentation”); and (iv) on a limited, nonsublicensable, non-transferable, and nonexclusive basis.
3.2. Administrators. Customer will invite Administrators to access the Services through the Administrator Dashboard. At registration, each Administrator will provide Optery with identifying information (such as name, email address, or other identifying information) to create an Administrator account (such account, an “Administrator Account”). Each Administrator must have its own unique Administrator Account on the Services and Administrators may not share their account credentials with one another or any third party. Customer will be responsible for all acts and omissions of its Administrators in connection with this Agreement and for all use of its Administrators’ accounts.
3.3. Delegated Members. Administrators or other Users may have the ability to use the Services on behalf of or for the benefit of another individual member of Customer (each such individual, a “Delegated Member”). Customer hereby acknowledges and agrees that it is responsible for ensuring that all rights and authorizations from the Delegated User have been received in order for such Administrator or other User to act on that individual’s behalf using the Services, and Company agrees to pass on those rights and authorizations to Optery and such Administrator or User as necessary.
3.4. Users. All use of the User Platform by Users, and Optery’s authorized processing of User Data, is governed by the Terms and Privacy Policy. Each User must agree to the Terms and Privacy Policy in order to use the User Platform.
3.5. Support. During the Subscription Period, Optery will use commercially reasonable efforts to provide support to Customer and its Administrators on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of U.S. Federal Holidays (“Support Hours”). Customer may initiate support requests via the live chat function of Optery’s Help Desk located at https://help.optery.com or by emailing support@optery.com. Optery will use commercially reasonable efforts to respond to all support requests within one (1) business day, but Customer acknowledges responses to support requests can sometimes take one (1) to five (5) business days during peak periods.
3.6. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services to build an application or product that is competitive with any Optery product or service; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (h) bypass any measures Optery may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is solely responsible for all of Customer’s activity in connection with the Services, including, but not limited to, uploading Customer Data onto the Services. Customer (i) shall use the Services in compliance with all applicable laws and (ii) shall not use the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights. Furthermore, Optery for Business is for use by Administrators on behalf of their organizations (the “Permitted Use“) and not for use by individuals for any other commercial or non-commercial use. Individuals and families can sign up for an Optery personal account here: https://app.optery.com. At its sole discretion, Optery reserves the right to immediately terminate and delete Optery for Business accounts that it determines have been created for any use other than the Permitted Use. If you believe your Optery for Business account has been deleted on accident or by mistake, please contact us at support@optery.com.
3.7. Suspension. Notwithstanding anything to the contrary in this Agreement, Optery may temporarily suspend Customer’s (including any Administrator’s access) to the Services if: (a) Optery reasonably determines that (i) there is a threat or attack on any of the Services; (ii) Customer’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of Optery; (iii) Customer or any Administrator is using the Services for fraudulent or illegal activities; (iv) subject to applicable laws, Customer 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; (v) Optery’s provision of the Services to Customer is prohibited by applicable laws; or (vi) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an Administrator through the Administrator Dashboard or otherwise made available as part of the Services may infringe or otherwise violate any third party’s intellectual property or other rights; or (b) any vendor of Optery has suspended or terminated Optery’s access to or use of any Third-Party Products required to enable Customer to access the Services (any such suspension a “Service Suspension”). Optery shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Optery 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. Optery will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
3.8. Third-Party Products. Optery may from time to time make Third-Party Products available to Customer or Optery may allow for certain Third-Party Products to be integrated with the Services to allow for the transmission of Customer Data from such Third-Party Products into the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Optery is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Optery to transmit Customer Data from Third-Party Products into the Services, Customer represents and warrants to Optery that it has all right, power, and authority to provide such authorization.
4. DATA USE
4.1. Data Use; Security. Notwithstanding anything to the contrary in this Agreement, Optery may process Business Contact Data and Usage Data: (a) to manage its relationship with Customer; (b) to carry out Optery’s core business operations; (c) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Optery, Customer, Users and Optery’s other customers and Users; (d) for identity verification purposes; and (e) to comply with applicable laws, rules, and regulations relating to the processing and retention of personal information to which Optery is subject. Optery may also process Usage Data to, among other things, monitor, maintain, and optimize the Services. Optery will maintain reasonable administrative, physical, and technical safeguards designed to prevent unauthorized use or disclosure of or access to Customer Data, Business Contact Data and Usage Data (excluding any aggregated, anonymized versions of the foregoing data).
4.2. Processing of Personal Information. Personal Information processed by Optery on behalf of Customer will be governed by the terms of this Agreement. For clarity, Optery’s rights and obligations with respect to User Data containing or consisting of Personal Information are set forth in Optery’s Privacy Policy.
5. INTELLECTUAL PROPERTY; FEEDBACK
5.1. Optery Intellectual Property. As between the Parties, Optery owns and retains all right, title, and interest in and to the Services, the Administrator Dashboard, the User Platform, Documentation, Optery Confidential Information, Usage Data, and all software, products, works, and other intellectual property and moral rights related thereto or created or provided by Optery in connection this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the Services and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.
5.2. Customer Data. As between the Parties, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer Confidential Information. Customer hereby grants to Optery a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use, perform, and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Optery to provide the Services. Customer may not upload to the Services or otherwise provide to Optery any Customer Data it does not have sufficient rights to upload.
5.3. Feedback. Customer hereby grants to Optery a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice any suggestions, ideas, enhancement requests, feedback, or recommendations that Customer provides to Optery.
6. FEES; PAYMENT
6.1. Fees. Customer shall pay Optery all costs, fees, expenses, and other charges (collectively, the “Fees”) identified in the Order without offset or deduction and at the cadence identified in the Order (e.g., monthly or yearly). Customer will pay all invoiced Fees immediately when the Order is placed. If a new User is added during the Subscription Period, the Fees for the new User shall be prorated to the end of the Subscription Period and due immediately when the Order is placed. Payment obligations are non-cancelable, and Fees paid to Optery are nonrefundable. Optery may increase the Fees upon notice to Customer. The Fees do not include taxes; Customer will pay all taxes, levies, and duties associated with this Agreement, other than taxes based on Optery’s income.
6.2. Late Payment. Non-payment after thirty (30) days may result in suspension or termination of Customer’s access to all or any part of the Services and Users’ access to all or any part of the User Platform at Optery’s discretion. Customer will pay Optery all costs and expenses of collection (including attorneys’ fees) incurred by Optery for collecting any such past due amounts.
7. TERM; TERMINATION
7.1. Term. The initial term of this Agreement begins on the day an Order is placed and, unless terminated earlier in accordance with this Section 7, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or until either Party cancels an Order prior to the expiration of the then-current term (each a “Renewal Subscription Period”, and together with the Initial Subscription Period, the “Subscription Period”). You can cancel your Order at any time by logging into your Optery for Business Administrator account at https://business.optery.com and downgrading your Member(s) to Free Basic, or emailing us at support@optery.com.
7.2. Termination. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.
7.3. Effects of Expiration or Termination of the Subscription Period. Upon expiration or termination of the Subscription Period, Customer’s and its Users’ access to Services and User Platform (respectively) will end, and the Subscription Period will not auto renew. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. The following Sections survive the expiration or termination of this Agreement: 2, 3.6, 3.7, 3.8, 5, 6 (with respect to amounts accrued prior to expiration or termination), and 6 through 12 (inclusive).
8. CONFIDENTIAL INFORMATION
8.1. Nonuse and Nondisclosure. Recipient will use Discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. Recipient will use reasonable care to protect the Discloser’s Confidential Information from being disclosed to Persons other than the Recipient’s employees, Affiliates, contractors, agents, or professional advisors who need to know it and who have a legal obligation to keep it confidential. Recipient’s disclosure of Confidential Information pursuant to law or a judicial or administrative order will not be deemed to be a breach of this Agreement, if Recipient (a) provides timely written notice of such disclosure requirement to the Discloser (if permitted to do so under applicable laws), and (b) reasonably cooperates, at Discloser’s expense, with the Discloser’s efforts to limit the scope of such disclosure.
8.2. Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the Recipient shall promptly return to Discloser all copies, whether in written, electronic, or other form or media, of Discloser’s Confidential Information, or destroy all such copies and certify in writing to Discloser that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; 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 until such Confidential Information is no longer considered a trade secret under applicable law through no wrongful act or omission of Recipient.
9. REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
9.1. Mutual Representations and Warranties. Each Party represents and warrants that (a) it has full power and authority to enter into this Agreement; and (b) the person entering into this Agreement on its behalf has the authority to do so.
9.2. Compliance. In the performance of this Agreement, each Party will comply with all applicable laws and regulations, including state and federal laws and regulations, orders, ordinances, and laws governing such party’s data privacy practices (including all required notices and consents necessary for the data processing activities described in this Agreement).
9.3. Disclaimer. THE SERVICES AND ANY OTHER INFORMATION AND MATERIALS (INCLUDING THE DOCUMENTATION) ARE PROVIDED BY OPTERY “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, AND OPTERY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE USE OF, OR THE RESULTS FROM THE USE OF, THE SERVICES), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE SERVICES AND ANY OTHER INFORMATION AND MATERIALS (INCLUDING THE DOCUMENTATION) PROVIDED BY OPTERY ARE OR WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF OPTERY TO ANY PERSON.
10. LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, PAYMENT OBLIGATIONS, DAMAGES ARISING FROM THE UNAUTHORIZED USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, OR BREACH OF CONFIDENTIALITY UNDER SECTION 8, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES; AND, (B) A PARTY’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.
11. INDEMNIFICATION
11.1. Optery Indemnity. Optery agrees to indemnify, defend and hold harmless Customer from and against any unaffiliated third party claims (“Claims”) asserted against Customer, its employees, contractors, officers, directors, and affiliates and any judgment, expenses (including reasonable attorneys’ fees), costs or liability (“Losses”) imposed against Customer pursuant to such Claims, to the extent such Claims allege that the Services infringe, misappropriate, or violate any third party’s intellectual property rights; provided that the obligations of Optery do not apply to the extent such claims arise from (a) materials not created or provided by Optery (including without limitation any Customer Data); (b) materials made in whole or in part in accordance to Customer specifications; (c) materials modified after delivery by Optery; (d) materials combined with other products, processes or materials not provided by Optery (where the alleged claim arises from or relates to such combination); (e) Customer continuing allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) Customer’s use of the Services not strictly in accordance herewith.
11.2. Customer Indemnity. Customer agrees to indemnify, defend and hold harmless Optery, its employees, contractors, officers, directors, and affiliates from and against Claims asserted against Optery, and any resulting Losses, to the extent such Claims allege that the Customer Data infringes, misappropriates, or violate any third party’s intellectual property rights.
11.3. Procedures. The indemnifying Party’s (the “Indemnitor”) obligations under this Section 11 are conditioned upon the Person(s) seeking indemnification under this Section 11 (the “Indemnitee(s)”): (a) promptly notifying the Indemnitor in writing of the Claim (so as to avoid prejudicing the Indemnitor); (b) granting the Indemnitor sole control of the defense and settlement of the Claim provided that any such settlement does not bind any Indemnitee to pay any monetary amounts or admit to any wrongdoing; and (c) providing the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the Claim.
11.4. Sole Remedy. SECTION 11.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OPTERY’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.
12. GENERAL
12.1. Independent Contractors. The Parties are independent contractors and nothing contained in this Agreement gives either Party the power to act as an agent of the other or to direct or control the day-to-day activities of the other.
12.2. Assignment. Customer may not assign this Agreement or its rights or obligations hereunder without the prior written consent of Optery. Optery may assign this Agreement and its rights and obligations hereunder freely without Customer’s consent. Nonpermitted assignments are void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. Notwithstanding the foregoing, Optery may fulfill some of its duties under this Agreement through Affiliates or other Persons that provide services, supplies, equipment, or staffing at the request of, under the supervision, or at the place of business of Optery (collectively “Subcontractors”). Optery will be liable to Customer for the acts and omissions of its Subcontractors to the same extent Optery would be liable to Customer had Optery committed such acts or omissions.
12.3. Notices. Any notice must be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, or overnight delivery service to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Optery, when sent via email to support@optery.com. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section.
12.4. Force Majeure. Neither Party will be liable, nor be deemed to have breached this Agreement for any failure or delay in fulfilling or performing any obligation of this Agreement (excluding any delay in the payment of any Fees that are due and payable) to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party including, without limitation, any act of God, flood, fire, earthquake, explosion, governmental action, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-out, strike, or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage.
12.5. Governing Law; Jurisdiction; Venue. This Agreement and all proceedings arising hereunder will be governed by and construed in accordance with the laws of the state of California without reference to its principles of conflicts of law. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the state and federal courts of the United States or the courts of the State of California in each case located in Contra Costa County, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.6. Remedies Cumulative. Except as explicitly provided in this Agreement, the remedies provided to the Parties under this Agreement are cumulative and will not exclude any other remedies to which a Party may be lawfully entitled.
12.7. Severability. Each provision of this Agreement is separate and distinct and severable from all other provisions. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and all remaining provisions of this Agreement will remain unimpaired.
12.8. No Third-Party Beneficiaries. Nothing set forth in this Agreement is intended to or will be construed to confer any rights or remedies upon any Person that is not a Party to this Agreement.
12.9. U.S. Government Customers. The Services comprise a “commercial item”, as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Customers acquire such software and documentation with only those rights set forth herein. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Optery to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
12.10. Export. Customer represents and covenants that Customer is not named on any U.S. government agency’s sanctioned or denied-party list. Customer will not, and will not permit any Person to, access or use the Services in violation of any applicable export law or regulation. Notwithstanding any other provision of this Agreement, Optery reserves the right to limit or deny access to the Services to anyone who is named on or subject to any U.S. government agency’s sanctioned or denied-party list.
12.11. Amendment and Waiver. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both Parties. The failure of either Party to act with respect to a breach of this Agreement by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches.
12.12. Entire Agreement. Subject to Section 1.2, this Agreement constitutes the complete and exclusive statement of all mutual understandings between Optery and Customer with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Nothing contained in any purchase order, acknowledgment or invoice will in any way modify or add to the terms or conditions of this Agreement. In the event of any conflict among the terms of this Agreement, the order of precedence shall be: (i) the Order; (ii) the Agreement.
12.13. Interpretation. In this Agreement: (a) the headings are for convenience only and will not affect the meaning or interpretation of this Agreement; (b) the words “herein,” “hereunder,” “hereby” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, or Section where they appear); (c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; and (d) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”. If an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.