Last Updated at 2022-05-01
This Terms and Conditions (“Agreement” or “Terms”) document states the terms and conditions that govern the service agreement between Optima, and an individual or entity user of Software (the “Customer “or “You”)
Optima reserves the right to amend these Terms at any time, effective upon the posting of such modified Terms on the Website. Optima will make every effort to communicate these changes to the Customer via the Website and also via an in-app notification. It is likely that the Terms will change over time. It is the Customer’s obligation to ensure that he/she has read and understood the most recent Terms available on the Website. They replace any prior agreement(s) between the Customer and Optima. When we change these Terms, the “last updated” date above will be updated to reflect the date of the most recent version.
1. Definitions and key terms
For the purposes of these Terms and Conditions:
- “Agreement” or “Terms” means these Terms and Conditions and includes any notices, policies, guidelines, or conditions sent to the Customer by Optima or posted on the Website.
- “Customer” means the end-user organization or individual user of the Software.
- “Equipment” means the hardware and systems owned or under the control of the Customer upon which the Software is to reside at Location.
- “Location” means the site(s) at which the Software and Third Party Software are installed.
- “Maintenance and Support” means the maintenance and support services.
- “Order Form” means the order form, site audit, proposal, or scoping document.
- “Services” means the Installation, Maintenance, and Support services to be delivered by Optima or Optima’ Authorized Representative.
- “Software” means the software Optima supplies under this Agreement, including any ancillary documentation.
- “Supervising officer” means the Customer’s primary contact for the operational use of the Software.
- “Website” means the Internet site at the domain https://optima.exchange, any other sites, and mobile apps operated by Optima.
- Any reference to “includes” or “including” is on a without limitation basis.
2. Scope of this Agreement
- Optima grants to the Customer a non-exclusive, non-transferable, personal license to use the Software at the Location for the number of servers (1 license for 1 web domain) specified on the Order Form. If the Customer proceeds to use the Software, the Customer agrees that it has accepted the terms of this Agreement. This license to use the Software shall terminate if the Customer no longer takes Maintenance and Support services (such as if termination occurs pursuant to Clause 3.2 below).
- Optima undertakes to install of the Software. Optima will provide Maintenance and Support for as long as the Customer pays for the Maintenance and Support.
- Except as expressly agreed, the Customer will not rent, lease, sub-license the Software, Third Party Software, or Products, nor distribute the Software or Third Party Software to any third party.
- Optima shall have no liability for the repair of defects relating to the Products and/or Third-Party Software, and the Customer’s right in respect of any such defect shall be limited to the relevant manufacturers’ warranties.
- The Software may be subject to security measures to protect Optima’s rights, such as in the event of non-payment.
3. Maintenance and Support
- Unless as expressly agreed, Optima does not provide Maintenance and Support for Third-Party Software or Products.
- The annual Maintenance and Support service will automatically renew for successive twelve (12) month terms on each anniversary of this Agreement unless either party has first-served three (3) months’ prior written notice of termination on the other party, such notice to expire on the relevant anniversary date. This clause 3.2 is without prejudice to the other rights of termination set out in this Agreement.
- The Customer undertakes to upgrade to the current version of the Software within twelve (12) months after delivery by Optima.
4. Training and Professional Services
4.1 The Customer may order training and/or professional services with the Software, in which case all training and/or professional services days must be taken within 12 months of the date of their order.
- The Customer shall pay all invoices within 7 days of their date. Optima shall invoice the Customer in advance.
- Optima reserves the right to increase its charges once in any twelve-month period upon giving the Customer at least 30 days prior written notice of such increase.
- Notwithstanding any other rights under this Agreement, Optima may suspend or terminate the performance of its obligations under this Agreement where the Customer is in default of payment, provided that Optima has first served the Customer with at least 5 days prior written notice of its intention to suspend or terminate the Services.
- All charges are given exclusively of VAT, which will be added at the rate and in the manner prescribed by law.
6. Customer Responsibilities
- It is the Customer’s responsibility to ensure that Equipment is compatible with the Software, any Third Party Software, and Products.
- The Customer will allow reasonable physical and systems access to its Location and Equipment to enable Optima to install the Software and to provide Maintenance and Support. Optima engineers will need network logins for the Software being used on the Equipment with administration rights.
- The Customer agrees to use the Software in accordance with all operating instructions and agreed-on procedures and not to change its configuration without the approval of Optima.
- The Customer will not alter or modify the Software, transfer the Software from the Location, combine or incorporate it in other programs, or decompile or disassemble the object code version of the Software.
- The Customer will keep full security copies of all data processed by the Software. Optima will not be liable for any loss of data.
- If Optima cannot reproduce a logged fault, the Customer will assist in providing remote access to the PC and or Server to further investigate the fault.
- Both parties shall use all reasonable endeavors to ensure that all information received from the other party is not disclosed to any third party and is not used for any purpose other than in the proper performance of obligations hereunder.
- Information belonging to the other party may be disclosed or used (as appropriate) by a party without the consent of that other (the disclosing party) if: it is now or subsequently becomes publicly known to that party through no wrongful act by that party, or if it is at the time of disclosure already known by the party to whom disclosure is made; or it is required to be disclosed by either party by an order of law or other binding regulation, or it is to be disclosed to the professional advisors of that party where the principle of client confidentiality would prevent the further release of that disclosed information by the advisor concerned.
- The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding the expiry or termination of this Agreement.
8. Intellectual Property
The customer acknowledges that Optima and its licensors own the intellectual property rights to the Software, the Third Party Software, and the Products as appropriate.
9. Termination of Agreement
- In addition to the right of termination at clause 5.3 above, Optima may terminate this Agreement in the event that the Customer is in material breach of any of its obligations under this Agreement and, in the event that the breach or failure is remediable, the Customer has failed to remedy that breach with 30 days written notice of such breach.
- Optima may terminate this Agreement immediately if the Customer is insolvent or bankrupt, or seeks protection from its creditors, or if a petition is filed in any court to declare its bankruptcy or re-organization and is not dismissed within thirty (30) days.
- Upon termination of the Agreement, all outstanding fees are immediately due and payable, and all rights to use the Software will be immediately revoked.
10. Force Majeure
Neither party shall be liable to the other for any failure to perform or delay in performance of its obligations hereunder, other than an obligation to pay monies, caused by any event or circumstance whatsoever beyond its reasonable control including (without limitation) (1) Act of God (2) outbreak of hostilities, riot, civil disturbance acts of terrorism (3) the act of any government or authority (including, revocation of any license or consent) (4) fire, explosion, flood, fog or bad weather (5) default of suppliers or sub-contractors (6) theft, malicious damage, strike, lock-out or industrial action of any kind. If a party is prevented from performing its obligations by an event of force majeure that continues for more than 30 days then either party may terminate this Agreement at any time thereafter on giving written notice to the other party.
- Optima may audit or instruct a third party to audit and inspect the Customer’s books, records and systems to ensure compliance with this Agreement, the Customer providing reasonable access.
- Each party acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties, and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, each party shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
- Optima may assign the benefit of this Agreement and its right and obligations hereunder. The Customer may not assign, charge (otherwise than by floating charge) or dispose of any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, without the prior written consent of Optima.
- Only parties to this Agreement may enforce its terms.
If you have any questions about these Terms and Conditions, You can contact Optima:
By sending us an email: [email protected]