Terms of Purchase

1 SCOPE

1.1 Scope. These terms of purchase (the “Terms”) are entered into by and between OptiX Technologies, LLC (“Optix”, “we”, or “our”) and any person (“you” or “your”) who executes an order document with OptiX (an “Order”) or other written agreement with an authorized distributor (each, a “Distributor”) to purchase our Products (as defined below). These Terms shall govern your use of any OptiX physical data processing hardware and sensors provided to you by OptiX or a Distributor, including any software embedded therein (“Software”) and any subscription to use the Software (“Subscription”, and collectively, the “Products”). By using our Products, you agree to these Terms, our Privacy Policy found at https://optixtechnologies.com/privacy-policy/, and our Website Terms of Use found at https://optixtechnologies.com/terms-of-use/, incorporated herein by reference. These Terms govern any Order (together, this “Agreement”). To the extent there is a conflict between these Terms and the term and conditions of any Order, these Terms shall govern. Please read these Terms carefully before using the Products.

1.2 Changes to these Terms. We may modify these Terms from time to time in our sole discretion. If you do not agree to the modified terms, you must not use, or discontinue your use of, our Products.

1.3 Third Party Rights. Except as may be expressly stated herein, nothing in these Terms is intended to confer rights on any third party.

2 PRODUCTS AND ORDERS

2.1 Products. Subject to the terms of this Agreement and solely during the Term, OptiX shall make available to you the Products purchased and detailed in the applicable Order.

2.2 Software. OptiX grants to you a limited, non-exclusive, non-transferable, revocable right to use the Software in accordance with this Agreement and solely in connection with and as a part of the Products. OptiX shall use reasonable efforts consistent with prevailing industry standards to minimize errors and interruptions in the Software. The Software may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by OptiX or by third-party providers, or because of other causes beyond OptiX’s reasonable control; provided, however, OptiX shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled disruption to the Software.

2.3 Orders. All Products delivered pursuant to an Order will be appropriately packed for shipment in OptiX’s standard shipping cartons, marked for shipment, and shipped to Customer or its carrier agent to the address set forth in the Order, with title and risk of loss passing to you upon your receipt of the Products; provided, however, that, in the event of a Delay (unless otherwise expressly agreed by OptiX in writing in any change order), (a) risk of loss to Products shall pass to you upon the original shipment date set forth in the applicable Order, (b) Products shall be deemed to have been delivered in accordance with the terms of the Order, and (c) OptiX, at its option, may store Products in its own or third party storage solutions, whereupon you shall be liable for all related and reasonable costs, fees, and expenses of storage but excluding associated insurance premiums. OptiX will select an industry-leading carrier, unless the carrier chosen by OptiX will not fulfill the delivery, in which case Customer’s choice of substitute carrier is subject to OptiX approval. You shall pay all reasonable shipping costs and expenses, as well as any special packing expenses that are specifically requested or incurred by OptiX in connection with the shipment and/or transport of Products. As used herein, a “Delay” is when (a) the Products are not shipped on or before the shipment date set forth in the Order or elsewhere in this Agreement and/or (b) the commencement of the Initial Subscription Term is delayed from the date set forth in the Order or elsewhere in this Agreement, in each case, solely due to your fault or request (including for reasons of change orders initiated by you and not otherwise waived by OptiX therein in writing, delays, failures to promptly respond to any OptiX requests, including sign offs, or other actions or inactions by you).

2.4 Acceptance of Products. Upon Delivery, at your sole option, you may test all, or a sample of, the delivered Products for that fails to conform to this Agreement (“Nonconforming Product”). You may reject any Nonconforming Products by providing notice to OptiX, either in writing or through any mutually agreed upon electronic interface and receive a credit for and return those products. Acceptance of a Product (“Acceptance”) will be deemed to have occurred thirty (30) days after Delivery, unless, prior to that date, you provide written notice of your rejection of the Product. “Delivery” shall occur upon Customer’s receipt of the Products at the location specified by Customer in an Order.

2.5 Delays. OptiX shall charge and bill and invoice you for: (i) all fees, costs, and expenses as set forth in the Order, including for Subscriptions, and as of the commencement date set forth therein; and (ii) all reasonable fees, costs, and expenses incurred by OptiX in connection with, arising from, or otherwise related to a Delay (including, for example, additional storage fees). Notwithstanding the foregoing, in the event a Delay delays the commencement of any Subscriptions, OptiX shall: (A) not charge and bill or invoice you for the provision of such Subscriptions until shipment of Products in accordance with the terms set forth in this Agreement (including the initial Order); and (B) provide prompt written notice to your representative(s) designated in the Order setting forth the revised shipment date of Products and commencement of Subscriptions; which such revised date(s) set forth in the written notice shall be binding on the parties and shall be deemed to amend and supersede any dates set forth in this Agreement (collectively, the “OptiX Obligations”).

3 TERM

3.1 Term. This Agreement shall commence on the date stated in the Order and shall continue thereafter for _____ (#) year(s) or other such term or period as set forth in the appliable Order (each period, the “Initial Subscription Term”). Upon expiration of the Initial Subscription Term, this Agreement shall automatically renew for successive periods of the same length as the Initial Subscription Term (each, a “Renewal Term” and together with the Initial Subscription Term, the “Term”).

4 RESTRICTIONS AND RESPONSIBILITIES

4.1 Prohibited Use. You will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Products; (b) modify, translate, or create derivative works based on the Products (except to the extent expressly permitted by OptiX or authorized within the Products); (c) remove any copyright or proprietary notices from the Products or any documentation therefor; (d) remove Software from the Products; (e) access the Products to build a competitive product or service, or copy any features, functions or graphics thereof; or (f) modify or attempt to service or repair the Products or use the Products for any purpose other than in connection with the Software.

4.2 Compliance with Laws. You represent, covenant, and warrant that you will use the Products in compliance with OptiX’s standard published policies then in effect (the “Policies”) and all applicable laws and regulations. Further, you may not remove or export from the United States or allow the export or re-export of the Products, anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Although OptiX has no obligation to monitor your use of the Products, OptiX may do so and may prohibit any use of the Products it believes may be (or alleged to be) in violation of the foregoing. Any failure to comply with such laws, regulations, or Policies shall constitute a material breach of this Agreement.

4.3 Your Responsibilities. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Products, including, without limitation, equipment, modems, devices, servers, operating systems, networking, web servers, and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account passwords (including but not limited to administrative and user passwords), and files, and for all uses of your account or the Equipment with or without your knowledge or consent.

5 CONFIDENTIALITY; PROPRIETARY RIGHTS

5. 1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of OptiX includes non-public information regarding features, functionality, and performance of the Products. Confidential Information of you includes, without limitation non- non-public data provided by you to OptiX to enable the provision of the Products (“Your Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Products or as otherwise expressly permitted herein) or divulge to any third person any such Confidential Information. The Receiving Party agrees to protect the confidentiality of Confidential Information during the Term and for five (5) years thereafter; provided, however, that with respect to any portion of the Confidential Information that constitutes a trade secret under applicable law, the obligations provided in this Article shall remain in effect as long as the Confidential Information remains a trade secret under applicable law. The parties acknowledge and agree that the confidentiality obligations contained herein shall not apply to any information that:

1. 1. is or becomes generally available to the public,
  2. was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party,
  3. was rightfully disclosed to the Receiving Party without restriction by a third party,
  4. was independently developed without the use of any Confidential Information of the Disclosing Party or
  5. is required to be disclosed by law.

5. 2 Ownership. You shall own all right, title, and interest in and to Your Data, as well as any data that is based on or derived from Your Data and provided to OptiX as part of the Products. OptiX shall own and retain all right, title and interest in and to (a) the Products and all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with the Products, and (c) all intellectual property rights related to any of the foregoing. You will have only those rights in or to the Products as expressly granted to it pursuant to this Agreement.

5.3 Grant of Rights. Notwithstanding anything to the contrary, OptiX may use, copy, modify, and create derivative works of the Your Data to provide the Products. Additionally, OptiX may collect, use, and analyze Your Data and other information and data relating to your use of the Products and OptiX’s related systems and technologies: (a) for operating, improving, enhancing, and providing the Products; and (b) in an aggregated and de-identified form (collectively, “Aggregated Data”). No rights or licenses are granted except as expressly set forth herein. You grant to OptiX a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Products any Aggregated Data.

5.4 Return of Confidential Information. At the end of the Term, the Receiving Party shall return or destroy all Confidential Information in its possession. OptiX has no obligation to return or destroy any Aggregated Data.

6 PAYMENT OF FEES

6.1 Fees. You will pay OptiX fees described in the Order for the Products in accordance with these Terms (the “Fees”). If your use of the Products requires the payment of additional fees (per the terms of this Agreement), you shall be billed for such usage, and you agree to pay the additional fees in the manner provided herein. OptiX reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or any Renewal Term, upon thirty (30) days’ prior notice to you (which may be sent by email). If you believe that OptiX has billed you incorrectly, you must contact OptiX no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed at OptiX’s customer support department.

6.2 Payment Terms. OptiX may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by OptiX sixty (60) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of one-half percent (0.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Products. You shall be responsible for all taxes associated with the Products other than U.S. taxes based on OptiX’s net income, personnel, or property.

7 WARRANTY AND DISCLAIMER

7.1 Warranty. OptiX warrants that the Products (i) shall be and shall remain free from defects in design, material and workmanship, and (ii) shall function in conformance with their specifications and any documentation provided therewith (the “Warranty”) for a period ending three (3) years from the date of shipment (the “Warranty Period”) if, and only if, you maintain an active and continuous Subscription for the entirety of the Warranty Period. If the Subscription terminates, for any reason, prior to the end of the Warranty Period, then the Warranty will automatically, and without any further action required by OptiX, terminate as of the same date. This Warranty does not cover defects or malfunctions caused by neglect, misuse, abuse, vandalism, or accident (other than where caused by OptiX’s action or inaction); use in an improper environment or failure to follow installation, un-installation, relocation, maintenance, or operating instructions. This Warranty will not apply to damage caused by unauthorized alteration, modification, or repair of the Products in violation of or otherwise inconsistent with the terms of this Agreement. This Warranty applies only to the original purchaser and is non-transferable and non-assignable. Any attempted transfer or assignment shall automatically, and without any further action required by any party hereto, void the Warranty. In addition, OptiX represents and warrants that, in the performance of its obligations under this Agreement, it shall comply with all applicable federal and state laws and regulations.

7.2 Disclaimer. OPTIX DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM INFRINGEMENT; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PRODUCTS ARE PROVIDED “AS IS”. OTHER THAN AS SET FORTH IN THIS AGREEMENT, OPTIX MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. OPTIX EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE.

8 LIMITATION OF LIABILITY

8.1 DISCLAIMER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SAID PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

8.2 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL OPTIX’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAYABLE BY YOU TO OPTIX UNDER THIS AGREEMENT WITHIN THE PAST TWELVE (12) MONTHS OF THIS AGREEMENT. Notwithstanding the foregoing, the provisions of this Article 8 do not apply to: (a) obligations or liabilities set forth in Article 5 (Confidentiality; Proprietary Right) and Article 9 (Indemnification) of this Agreement; (b) any obligation of either party to pay or reimburse fees or to reimburse expenses, to the extent that this Agreement specifically calls for such payment or reimbursement; or (c) claims for attorney’s fees and other litigation costs either party becomes entitled to recover as a prevailing party in any action.

9 INDEMNITY

9.1 Your Indemnity. You hereby agree to indemnify and hold harmless OptiX against any damages, losses, liabilities, settlements, and expenses (including without limitation reasonable court costs and attorneys’ fees) in connection with any claim or action that arises from an alleged breach of this Agreement or otherwise from your use of the Products.

9.2 OptiX Indemnity. OptiX shall hold you harmless from liability to third parties resulting from any infringement by the Products of any patent, copyright, or misappropriation of any trade secret, provided OptiX is promptly notified of any and all threats, claims, and proceedings related thereto (provided, however, failure to provide prompt notice will not affect OptiX’s obligations to the extent the failure does not materially prejudice OptiX’s ability to defend the claim) and given reasonable assistance and the opportunity to assume sole control over defense and settlement; OptiX will not be responsible for any settlement it does not approve in writing. You will have the right to participate with OptiX in the defense or appeal of any such claim, at your own expense (such expense not being indemnified by OptiX), but OptiX will have sole control and authority with respect to any such defense, compromise, settlement, appeal, or similar action, provided that OptiX obtains your prior consent to any settlement that requires you to make any admission of fault or pay any amounts in connection with such settlement. The foregoing obligations do not apply with respect to portions or components of the Products (a) not supplied or approved by OptiX, (b) made in whole or in part in accordance with you written specifications, (c) that are modified by you or its agents after delivery by OptiX, (d) combined with other products, processes, or materials not provided or approved by OptiX where the alleged infringement relates to such combination, (e) where you continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where your use of the Products is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Products are held by a court of competent jurisdiction to be or are believed by OptiX to be infringing, OptiX may, at its option and expense (i) replace or modify the Products to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for you a license to continue using the Products, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused fees for the Products.

10 Entire Agreement

This Agreement, along with OptiX’s Privacy Policy and Website Terms of Use, constitute the sole and entire agreement of between you and OptiX with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.

11 Governing Law

This Agreement shall be governed by the laws of the State of Alabama, without regard to its conflict of law principles, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

12 Force Majeure

OptiX will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond OptiX’s reasonable control.