Terms and Conditions

OPTEL VISION LTD (Limerick, Ireland)
STANDARD TERMS AND CONDITIONS
CERTA™ (SaaS) SUBSCRIPTION + GOODS AND ANCILLARY SERVICES
20181211 v Europe

OPTEL Vision Ltd and Customer hereby enter into a contract regarding the services ordered by the Customer.

1. APPLICATION OF THESE TERMS These terms and conditions (“Ts & Cs”) apply to Customer’s subscription to Certa™, software provided as a service (SaaS) to assist Customer with its obligation to meet the European Union’s Falsified Medicines Directive (or other similar regulation).
2. ACCEPTANCE OF THESE TERMS. Customer accepts the present Ts & Cs by completing its purchase online from OPTEL’s website. No amendment, addition, change, modification or waiver to any of these Ts & Cs or any of Customer’s own terms and conditions shall be binding on OPTEL unless OPTEL’s President, Executive Vice-President, or Head of Legal has agreed to it in writing.
3. DEFINITIONS. In addition to the capitalized terms defined elsewhere in these Ts & Cs, the following terms are defined as described below:
   1. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with, the specified entity, or the Client’s mandator for the purpose of the purchase of the services from OPTEL. For purposes of the foregoing, “control” means having more than 50% ownership or the right to direct the management of the entity.
   2. “Authorized User” means an employee of Customer or any other natural person designated by Customer to be allowed to access and use the Software in the course of Customer’s normal activities.
   3. “Customer” means the person or entity having ordered any Services, and its Affiliates benefitting from the Services.
   4. “Fee(s)” means the subscription fees or any fees or charges for the Services provided by OPTEL.
   5. “Intellectual Property Rights” or “IP Rights” means all patents and patent applications, trademarks and registrations thereof and applications therefore, copyrights and copyright registrations and applications, integrated circuit topographies and registrations thereof, rights in industrial designs, rights in trade secrets, rights in know-how, database rights, moral rights, all rights related to any software and any other intellectual property rights (registered or unregistered) throughout the world, and all amendments, modifications, and improvements to any of the foregoing.
   6. “Purchase Order” means the OPTEL Form filled out online by Customer or any written order compliant with OPTEL’s online offer.
   7. “Service(s)” means the Subscription Services and/or any other services provided by OPTEL, which may be required by Customer.
   8. “Subscription Services” means the rights granted by OPTEL to access and use Certa™ (Software as a Service).
   9. “Software” means Certa™, and any other software for which the Customer has been granted an access or a license of use by OPTEL.
   10. “Terms of Use” or “ToU” refers to Optel’s Terms of Use of its software (Certa™, and any other software for which the Customer has been granted an access or a license by Optel).
4. ACCESS TO CERTA™ - GRANT OF RIGHT. Subject to Customer’s timely payment of all Fees and to Customer’s use of Certa™ in compliance with the ToU, OPTEL hereby grants to Customer, including to all Customer’s Authorized Users, during the subscription term, a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the functionalities of Certa™ solely for Customer’s own internal business operations. The Customer shall not procure access to the Certa™ to any third party for such third party’s own benefit. Certa™ is hosted via Microsoft Azure in the European Union. Certa™ will be accessed by Authorized Users using a thin client, via a web browser, or web delivery methods for business systems to business systems (B2B) transactions. Customer shall have to purchase one (1) “token”/“connection” per device it wishes to use to access Certa™. The “token”/“connection” is a proprietary software program to be installed on the Customer’s device.
5. RECURRING SUBSCRIPTION FEES. In consideration of the Subscription Services, Customer shall pay the recurring subscription fees pursuant to the terms of payment indicated in its Purchase Order or in the Budgetary Proposal.
6. PAYMENT OF FEES. Payments of any Fees due hereunder shall in no event be withheld or subject to set-off. Upon Customer’s default, OPTEL may declare due all other Fees or sums owing by Customer to OPTEL.
7. SALES TAXES, ETC. Customer will be responsible for any applicable sales, value-added, use and similar taxes, together with all customs and import duties, and similar levies and impositions (“Taxes”) payable with respect to the Services, or otherwise arising out of or in connection with this agreement, other than taxes based upon OPTEL’s net income. Unless expressly specified otherwise, all Fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status with its purchase orders or upon request by OPTEL.
8. WITHHOLDING. If Customer is required to withhold taxes imposed upon OPTEL for any payment under this agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Services are delivered or obtained, then such payments will be made by Customer on behalf of OPTEL by deducting them from the payment then due to OPTEL and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this agreement will be adjusted upwards appropriately so that OPTEL actually receives the full amount of the fees set forth in the applicable Purchase Order. Customer will provide OPTEL with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by OPTEL for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
9. INTEREST. OPTEL will charge Customer interest at a rate of 2% per month (24% per year) on any outstanding balance, in addition to its recourses or any other remedies to which it may be entitled, such as the immediate interruption of the Subscription Services or the forfeiture of the term for other Fees.
10. INITIAL TERM. Unless otherwise indicated in the Purchase Order, the initial term of the Customer’s subscription to the Subscription Services is one (1) year.
11. AUTOMATIC RENEWAL. Customer’s subscription to the Subscription Services shall renew automatically for the same period as the initial term, unless Customer sends OPTEL a WRITTEN non-renewal notice, at least 45 days prior to the automatic renewal date.
12. AUTHORIZED USERS AND ACCESS. All actions taken using the login user name and password issued to any Authorized User shall be deemed an action of the Customer. The activities of Authorized Users relating to the Software are subject to the scope, limitations and restrictions in the present Ts & Cs and to the ToU. Customer will communicate the scope, limitations and restrictions in this Agreement to Authorized Users. Non-compliance with any provision of the present Ts & Cs and of the ToU by any Authorized User shall constitute a breach by Customer.
13. PROHIBITIONS. Customer shall not, and shall not permit any Authorized User or third-party to:
    1. Rent, lease, assign, sell, lend, commercialize, or transfer any benefit of or purported right to access or use the Software, in whole or in part, to any third-party not expressly authorized hereunder;
    2. Outside of the normal course of its business, use, copy, sell or share any information inputted or collected with the help of the Software or the documentation provided by OPTEL;
    3. Access or attempt to access any module, functionality, or portion of the Software to which a right of access is not specifically granted;
    4. Create any joint or derivative work involving the Software;
    5. Decompile, disassemble, translate or reverse engineer any portion of the Software, or otherwise discover or duplicate any content, data, technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Software;
    6. Alter or modify in any way the functioning of the Software or knowingly interfere with the functioning of the Software;
    7. Grant or purport to grant any right, title, interest, lien or option in any portion of the Software, or in any IP Rights therein, other than the limited right of use as set forth in an Agreement document; or
    8. Remove alter, add, or obscure any copyright or trademark notice or any user notice, warning, disclaimer, consent or advisory pertaining to or included in any information, documentation, equipment, or materials provided by OPTEL.
14. MONITORING AND REPORTING. Customer shall monitor access to and use of the Software by its Authorized Users, investigate, and promptly report to OPTEL any loss or compromise of any user name or password information or any suspected or known violations of any provisions of the present Ts & Cs or of the ToU.
15. OPERATING ENVIRONMENT AND THIRD-PARTY ITEMS. Customer is responsible for providing and maintaining an operating environment as reasonably necessary to access and use the Software. Customer also acknowledges and agrees that Customer’s use of any third-party hardware, software, maintenance and repair services, and telecommunication services is the sole responsibility of Customer.
16. INTELLECTUAL PROPERTY RIGHTS. OPTEL will retain all rights, title, and interest in and to the Software and any related documentation, and the modifications, improvements, upgrades, derivative works, and all other Intellectual Property Rights in connection with the Software or any related documentation. There shall be no “work for hire” made by OPTEL.
17. TECHNOLOGY IMPROVEMENT. OPTEL may modify the Subscription Services or the Software as it determines necessary to reflect the changes in technology and information security practices. OPTEL may require Customer to utilize OPTEL or third-party software updates in order to continue using the Software.
18. WARRANTIES. Optel warrants that:
    1. Warranty (compliance). During the subscription term, the Software will conform in all material respects to its applicable specifications.
    2. Warranty (availability). Certa™ shall be available on a 24/7 basis at an Uptime Metric (as defined below) of at least 99.5%:
       1. Measurement (“Uptime Metric”). For any given calendar month, Certa™ uptime metric shall be measured using the following formula (“Uptime Metric”):

          ( ( available hours in a month – duration of outages in that month ) / ( available hours in a month ) ) x 100

       2. Indemnification. For any failure to meet Certa™ Uptime Metric, as sole indemnity, Customer shall be awarded the following credits on its subscription fees (“Service Credits”):

          Uptime Metric	Rating	Service Credits
          99.5% - 100%	Meets Goals	No credit
          99.0% - 99.4%	Tolerable	One (1) day credit
          98.9% - 80.0%	Unacceptable	Two (2) days credit
          Below 80%	Failure	50% of the subscription fees applicable to a single month

    3. Infringement. OPTEL’s provision to Customer of the Subscription Services does not infringe any third-party patent nor does it infringe any third-party copyright, or trademark, or result from misappropriation by OPTEL of any third party’s trade secrets (collectively, an “Optel Infringement”).
19. REMEDIES. If the Software fails to conform to the warranty set forth in Section 18.1 and Customer provides written notice of the non-conformance to OPTEL within the applicable subscription term then, as Customer’s exclusive remedy and OPTEL’s sole obligation: OPTEL will either repair or, at its option, replace the non-conforming Software or, if OPTEL is unable to correct the non-conformance within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable subscription, and OPTEL will refund to Customer a pro-rata amount of any Fees prepaid to OPTEL and applicable to the unutilized portion of the subscription term.
20. INFRINGEMENT REMEDY. Customer’s sole and exclusive remedy for any non-conformance with the warranty in Section 18.3 (infringement) above will be Customer’s defense and indemnification rights under Section 27.1 (OPTEL’s infringement indemnification) below, and Customer’s termination rights under Section 25.1 (termination on breach) below.
21. BUGS AND ABATEMENT; SCOPE. Without limiting the express warranties set forth herein, OPTEL does not warrant that the Software or Services are completely free from all bugs, errors or omissions. The warranties set forth herein automatically abate to the extent that the Software or the equipment provided by OPTEL has been modified by persons other than OPTEL’s authorized employees or representatives, or other than at OPTEL’s express direction. The warranties set forth herein are for the sole benefit of Customer and may not be extended to any other person or entity.
22. DISCLAIMER OF IMPLIED WARRANTIES. OPTEL makes no representation or warranty in connection with the Services, except as expressly warranted herein. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED HEREIN, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ANY STATUTORY REMEDY.
23. PERSONAL DATA – PROCESSED BY CUSTOMER. Customer may not use the Software to process personal information of its customers, whether related to their health or not, and, therefore, no personal information shall be transmitted to OPTEL by Customer, other than the personal information of the Authorized Users necessary to allow for the use of the Software and the benefit of the Services.
24. PERSONAL DATA – PROCESSED BY OPTEL. In order to provide the Services, personal data on Authorized Users (such as names and e-mail addresses) may have to be provided to OPTEL (in order to provide User ID and password, for example). This personal information will be stored in Ireland and used by OPTEL for the sole purpose of the Services. OPTEL has put in place security measures to protect all personal information and guarantees that all the personal information will only be accessed by employees who need to do so in the course of their job duties. In the ToU, OPTEL informs the Authorized Users that personal information may be collected from them and of their rights. Customer shall transmit the information to its Authorized Users and make them aware of the ToU.
25. TERMINATION.
    1. Termination on Breach. In the event of a material breach of the agreement by either party, the non-breaching party may terminate the agreement or any order affected by the breach by giving the breaching party written notice of the breach and of its intention to terminate. If the breach has not been cured within the period ending 30 days after such notice, and if the non-breaching party provides written notice of termination to the breaching party (“Termination Notice”), then this agreement or any such order will terminate. Customer shall be deemed to be in default upon nonpayment of any Fee on due date, and should the Customer fail to pay such Fee within 30 days after its due date, OPTEL may, at its sole discretion, and without prejudice to its other rights, either terminate this agreement or suspend performance of some or all of OPTEL’s obligations to provide Services.
    2. Termination for Convenience. The Client agrees that this agreement may not be terminated for convenience. The Subscription Services can only be terminated at the arrival of each term, upon prior non-renewal notice (Section 11).
26. SUSPENSION. OPTEL may suspend Customer’s or any Authorized User’s right to access or use any portion of the Subscription Services if OPTEL determines that Customer’s or Authorized Users’ use of the Software (i) poses a security risk, (ii) may adversely impact the Subscription Services, the Software, or the networks or data of any other OPTEL customer, business partner or service provider, (iii) does not comply with the ToU or applicable law, or (iv) may subject OPTEL or any third party to liability or serious damages. OPTEL will endeavor to provide as much notice as is reasonably practicable in the circumstances, and to reinstate the Subscription Services as soon as reasonably practicable following correction of the issue.
27. INDEMNIFICATION.

    1. Optel’s Infringement Indemnification.

       Defense and Indemnity. If any third party makes any claim against Customer that, if true, would constitute an OPTEL Infringement (defined in Section 18.3 herein) then, upon notification of such claim, OPTEL will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages, fines and penalties ultimately awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by OPTEL. OPTEL’s obligations under this section are subject to Customer’s compliance with the “Indemnification Conditions” (defined below).

       “Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to defense or indemnification under the agreement by the other party: (i) the indemnified party promptly notifies the indemnifying party in writing of any claim that might be the subject of indemnification; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability nor enters into any settlement negotiation without the indemnifying party’s prior written agreement; (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request; (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding; and (vi) the indemnified party uses all commercially reasonable efforts to mitigate its losses.

       Optel’s Mitigation Rights. If any Subscription Services become (or in OPTEL’s opinion are likely to become) the subject of any infringement or misappropriation claim, OPTEL may, and if Customer’s use of the Subscription Services is enjoined, OPTEL must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable order or Customer’s rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to OPTEL and applicable to the unutilized portion of the subscription term for the terminated Subscription Services.

       Exclusions. Notwithstanding the foregoing, OPTEL will have no obligation with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Subscription Services with other products, equipment, software, services or data not supplied by OPTEL where the infringement would not have occurred but for such combination, (iii) OPTEL’s compliance with Customer’s specifications, configuration requirements, or other instructions, (iv) any use of any version of any Software other than the most current version made available to Customer after notice from OPTEL that Customer must upgrade to such release to avoid an infringement or misappropriation claim, or (v) any modification of the Software not made by OPTEL or its subcontractors, or at its or their express direction.

    2. Improper Use of the Software – Indemnification by Customer.

       Customer will indemnify and hold OPTEL harmless from any claims, damages, losses, judgments, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any non-compliance by Customer or its Authorized Users with the Terms of Use.

28. LIMITATIONS AND EXCLUSIONS OF LIABILITY.
    1. Exclusion of Certain Claims. SUBJECT TO SECTION 28.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, REVENUE OR PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT, OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
    2. Limitation of Liability. Subject to Section 28.3, neither party’s maximum aggregate liability arising out of this agreement or any related agreement will in any event exceed the fees paid to OPTEL under the order giving rise to the claim during the 12-month period immediately preceding the aggrieved party’s first assertion of any claim against the other, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
    3. Exceptions. Sections 29.1 and 29.2 do not apply to either party’s (i) willful misconduct or gross negligence, (ii) infringement or misappropriation of any of the other’s Intellectual Property Rights, or (iii) liability or loss which may not be limited by applicable law.
    4. Free Trial. With respect to any free trial OPTEL may have granted Customer, OPTEL’s aggregate liability will in no event exceed one hundred US dollars, regardless of any theory of liability, and notwithstanding any provision of this agreement to the contrary.
    5. General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer or its Affiliates or fail in their essential purpose and that without these limitations the fees for the Services would be significantly higher. Neither party may commence any action or proceeding under this Agreement more than two years after the occurrence of the applicable cause of action.
29. NOTICES. 29. All formal legal notices shall be in writing and be given by registered mail, postage prepaid, to the addresses hereinafter set forth: (a) if to OPTEL, to Optel Group, Head of Legal, 2680 boul. du Parc-Technologique, Quebec, Quebec, G1P 4S6, Canada, with a copy by e-mail to legalnotices@optelgroup.com, and (b) if to Customer: at Customer’s head office. Any notice mailed shall be deemed to have been received on the 5th day after the date on which the notice was deposited in a post office for onward transmission by prepaid registered mail
30. PUBLICITY; REFERENCES. Unless otherwise specified in writing, OPTEL may refer to Customer as one of OPTEL’s customers and use Customer’s logo as part of such reference. With Customer’s prior written approval, (i) OPTEL may either (a) issue a press release announcing the relationship between OPTEL and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed; and (ii) Customer will be a reference account for OPTEL, provided, however, that OPTEL will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.
31. SEVERABILITY. Invalidity of any of these provisions will not affect the validity of any other provision and the remaining provisions will remain in full force and effect.
32. WAIVER. Failure by OPTEL to enforce any of these Ts & Cs in a particular instance will not constitute a waiver of, or preclude subsequent enforcement of, any of these provisions.
33. ASSIGNMENT. Customer shall not, without OPTEL’s prior written consent, assign any rights, order, proposal or claims relating in any manner to the Services.
34. NON-SOLICITATION. At all times while Customer is employing the services of OPTEL and for 12 months thereafter, Customer shall not, directly or indirectly, induce or attempt to induce any employee or agent of OPTEL or of any of its Affiliates to leave the employ of OPTEL or of any of its Affiliates, or hire any such employee or agent (including any former employee who has left OPTEL or any of its Affiliates within 12 months prior to such hiring) in any business or capacity. Parties agree to liquidated damages of three (3) times the annual remuneration of such employee or agent, as indemnity to OPTEL for failure by Customer to comply with this non-solicitation provision, in addition to OPTEL’s right to obtain an injunctive relief.
35. APPLICABLE LAW. Any agreement, sale, order, proposal or offer shall be governed by and must be construed and enforced in accordance with the laws of the Republic of Ireland, without regard to its conflicts of law provisions. The parties (a) agree that any dispute arising out of their business relationship must be brought before the courts located in Limerick, Ireland; (b) irrevocably submit to the exclusive jurisdiction of any such court; (c) waive any objection that such party may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court; and (d) further agree not to plead or claim the same.
36. LANGUAGE. The Quotation/Budgetary Proposal, Purchase Order and the present Ts & Cs were prepared in English at the express request of both parties. / Les présentes ont été rédigées en anglais à la demande expresse des parties.