END USER LICENSE AGREEMENT

Last Update: May 2021

This Agreement between OpusXenta and You covers Your use of the Software (as defined below).

In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in the Purchase and Service Agreement between You and OpusXenta (if applicable), the terms and conditions set forth in the Purchase and Service Agreement shall prevail.

IMPORTANT—SCROLL THROUGH AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS. BY (A) CLICKING "I AGREE" OR A SIMILAR AFFIRMATION, AS APPLICABLE THAT APPEARS DURING INSTALLATION OF THE PROGRAM, OR (B) USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT (IN ITS ENTIRETY AND WITHOUT CHANGE TO OR ADDITION TO ITS TERMS AND CONDITIONS), THEN YOU DO NOT HAVE A LICENSE TO USE (AND YOU MUST NOT USE) THE SOFTWARE.

 

1.     DEFINITIONS. As used herein, the following terms have the following meanings:

 

a.     Affiliate” means any entity that controls You, that You control, or that is under common control with You, where “control” means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate. 

b.     Agreement” means this OpusXenta End User License Agreement, the Purchase and Service Agreement (if applicable), all applicable license fee invoices, and Service Plan information as described in Section 14, which are incorporated herein by reference and made a part hereof. 

c.     Cloud Service” means the OpusXenta “byondpro” software solution and “byondcloud” applications that are offered on a hosted, software-as-a-service basis.

d.     Customer Support” means Software assistance You receive by phone, email, chat, access to on-line information, or by similar means because You purchased a Service Plan or a Software Subscription License. 

e.     Documentation” means the Program and/or Cloud Service specifications that are set forth in the help files and any release-related notes, guides or manuals OpusXenta publishes  or otherwise makes available, which describe the functionality, components, features, or requirements of the Program and/or Cloud Service, including any aspect of the installation, configuration, integration, operation, or use. 

f.      Enabled Use” means that OpusXenta has fulfilled the applicable software delivery process (whether by shipping tangible goods including recorded media containing the Software, enabling downloading of the Software, delivering activation codes for the Software, or otherwise), thereby enabling Use of the Software. 

g.     Evaluation License” means a time-limited license to Use the Software for evaluation purposes only to determine if it is suitable for Your business. 

h.     Maintenance Software” means updates to the Software, including bug fixes, patches, enhanced functions, missing plug-ins, and new versions that OpusXenta delivers because You have purchased a Software Subscription License. 

i.       OpusXenta” means OpusXenta Inc. or an Affiliate thereof that publishes the Software. 

j.       Program” means the OpusXenta “byondpro” software solution that is offered on an installed, on-premise basis.

k.     “Software Subscription License” means a license to Use the Software and a Service Plan according to this Agreement until the specified term or subscription period ends or Your license or this Agreement terminates as described herein. 

l.       “Service Plan” means a plan You purchase separately or acquire as part of the purchase of a Software Subscription License providing You Customer Support for a specified period as described in Section 14. 

m.    Software” means collectively, the Program, the Cloud Service and the Documentation, and any part thereof. 

n.     Use” means, as applicable (1) to access and use the Cloud Service or (2) to install and execute the Program, in each case solely by You for Your internal business purposes and in accordance with the terms and conditions herein, provided that with respect to the Program: 

                                               i.     You install the Program only on a computer system that You own or only on a computer system not owned by You if You will be the only party with access to the installed Program; and 

                                              ii.     You execute the Program during the term of Your license or subscription (i) for its intended purpose solely in connection with the management of the business that You conduct, and (ii) solely to the extent of any and all applicable limitations (whether as to specific modules or other parts of the Program, or number of production or backup server computers) set forth in this Agreement; and 

                                             iii.     You may make only a reasonable number of backup copies of the Program solely for backup, disaster recovery or archival purposes, and specifically excluding all other uses; provided, however, that the original Program and each copy is kept in your possession or control, and use of the Program does not exceed that which is allowed in this Agreement.

o.     You” or “Your” means or refers to the company or person(s) that OpusXenta has registered as the licensee for the Software.

 

2.     GRANT OF LICENSE. During the term of the Software Subscription License, and subject to the terms and conditions hereof, including Your payment of all applicable fees, OpusXenta grants You a limited, non-exclusive, non-transferable, non-sublicensable (except as set forth in Section 3.b below) license of the scope described in this Agreement to Use the Software only if You or someone acting on Your behalf and at Your direction has (a) placed an order with OpusXenta for either an initial license or an upgrade (such as for more users, additional modules, etc.), or a Service Plan, and OpusXenta has accepted such order and Enabled Use of the Software; and (b) accepted all of the terms and conditions of this Agreement either before or during installation of or access to the Software.

a.     If You access the Software under an Evaluation License prior to Your purchase of a Software Subscription License, You acknowledge and agree that (i) You shall Use the Software only for evaluation purposes before purchasing a Software Subscription License to determine if the Software is suitable for Your business, (ii) the Software may be Used and/or operable only for a limited time, (iii) the Software is provided “AS IS” with no express or implied warranties (as further described in Section 7 below), and (iv) upon expiration of the Evaluation License, You acknowledge that OpusXenta is under no obligation to return to You any data processed by or stored in the Software and that all or some of such data may become irretrievable, unrecoverable and/or otherwise unusable by You after the evaluation period ends. You further acknowledge and agree that certain sections of this Agreement are not applicable to Evaluation Licenses, including, without limitation, Sections 7.a, 7.b, and 7.c. 

 

3.     LIMITS OF LICENSE. You shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. The license contained in this Agreement does not include the right to perform, and You shall not perform, any of the following: 

a.     Except as expressly set forth in Section 1.n above, making any copy of the Software. 

b.     Distributing any copy of the Software (whether by renting, leasing, lending, sublicensing, time-sharing, or otherwise), except that, if OpusXenta consents in writing, which consent will not be unreasonably denied, You may transfer the Software but only to a purchasing party after the close of a sale of either Your entire business, or all, or substantially all, of the assets of Your business, provided that the purchasing party reads and accepts (in writing to OpusXenta) the terms and conditions of this Agreement, the purchasing party agrees to other reasonable transfer requirements, and You do not retain a copy of or access to the Software. For the avoidance of doubt, OpusXenta may freely transfer its rights and obligations in the Software and under this Agreement to any third party.

c.     Altering, modifying, translating, decompiling, decoding, disassembling, reverse-engineering or otherwise attempting to derive or gain access to the source code of the Software or creating any derivative work based upon the Software. 

d.     Removing, deleting, altering or obscuring any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software. 

e.     Using the Software (i) in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; or (ii) for purposes of competitive analysis of the Software, the development, provision, or use of a competing software service or product or any other purpose that is to OpusXenta’s detriment or commercial disadvantage.

f.      Using the Software in excess of (i) the limitations set forth in this Agreement, and (ii) the number and types of users, seats, records or licenses You purchase or rightfully acquire. Use of the Software in excess of the number and type of licenses You purchased constitutes a material breach of this Agreement and (1) You agree to pay to OpusXenta the additional license or subscription fees due for the unpaid use calculated in accordance with the applicable OpusXenta retail price list in effect at the time payment is made, and (2) failure to make the foregoing payment within thirty (30) days of OpusXenta’s invoice date is also a material breach of this Agreement and results in the automatic termination of this Agreement without notice.

 

4.     ADDITIONAL RESTRICTIONS. 

a.     Any report-writing software contained within the Software may be subject to a restriction such that its use may be limited to accessing only the data that is created by, or used by, the Software. 

b.     You may not Use, export, re-export or otherwise transfer the Software in violation of any domestic or foreign laws or regulations in effect from time to time in the jurisdiction in which You are a resident or in which the Software is Used. You represent and warrant that You are not located in, under the control of, or a national or resident of, any restricted country or of any entity or person designated as restricted. 

 

5.     OWNERSHIP; FEEDBACK.

a.     All right, title, and interest in and to the Software, including all intellectual property rights therein, are and will remain with OpusXenta and, with respect to any third-party materials included in the Software, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to such third-party materials. You have no right, license, or authorization with respect to the Software except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to Sections 3 and 4. All other rights in and to the Software are expressly reserved by OpusXenta.

b.     If You send or transmit any communications or materials to OpusXenta by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), OpusXenta is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to OpusXenta, and on behalf of your employees, contractors and/or agents, all right, title, and interest in, and OpusXenta is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although OpusXenta is not required to use any Feedback.

 

6.     U.S. GOVERNMENT RESTRICTED RIGHTS. To the extent applicable, the Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government (including its agencies and instrumentalities) is subject to restrictions set forth in 48 CFR 52.227-19 or DFARS 252.227-7014, as applicable. The manufacturer is OpusXenta. The OpusXenta address in Australia is Level 53 MLC Centre 20 Martin Place Sydney NSW 2000.

 

7.     LIMITED WARRANTIES AND DISCLAIMERS. 

a.     Software. OpusXenta warrants that, during the one hundred and eighty (180)-day period (the “Software Warranty Period”) that commences on the date that OpusXenta Enabled Use of the Software (whether for an initial license or for Maintenance Software), the Software, when properly Used, shall perform substantially in accordance with the Documentation. OpusXenta does not warrant or represent that Your Use of the Software will be uninterrupted or error-free. If You report to OpusXenta in writing within the Software Warranty Period any substantive non-conformity between the Documentation and the Software (a “Warranty Claim”), and if OpusXenta is able to replicate and verify that such non-conformity exists, OpusXenta shall make commercially reasonable efforts to correct such non-conformity and, if successful, shall supply You with such correction at no additional cost to You. If such efforts are unsuccessful and the non-conformity is material, Your sole remedy for a breach of the warranty described in this Section 7.a shall be to terminate this Agreement and discontinue Use of and return all copies You have of the Software to OpusXenta, and OpusXenta will ensure that You receive a refund of any prepaid but unused portion of the Software Subscription License fees paid by You for the Software . 

b.     Customer Support. If You are entitled to receive Customer Support as part of a Service Plan, OpusXenta warrants that while Your Service Plan is in effect and if You have paid all required Service Plan fees, OpusXenta will use qualified personnel to provide You Customer Support in a professional manner consistent with industry standards. Your sole remedy under this Section 7.b is limited to OpusXenta’s re-performance of the Customer Support services giving rise to Your claim. 

c.     With respect to any media by which You may have received Your installation copy of the Program, OpusXenta warrants that the media is free of defects in materials and workmanship under normal use for the Software Warranty Period. Your sole remedy under this Section 7.c is limited to replacement of defective media. 

d.     Evaluation License. SOFTWARE PROVIDED UNDER AN EVALUATION LICENSE IS PROVIDED “AS IS” WITH NO IMPLIED OR EXPRESS WARRANTIES. Sections 7.a, 7.b, and 7.c do not apply to Evaluation Licenses. 

e.     OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS SECTION 7, OPUSXENTA AND ITS SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES, OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, CONDITIONS, OR GUARANTEES (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (IV) ARISING FROM CUSTOM OR TRADE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND AND AGREE THAT: (1) THE UTILITY OF A BUSINESS MANAGEMENT COMPUTER PROGRAM SUCH AS THE SOFTWARE DECREASES AS TECHNOLOGY EVOLVES AND THE BUSINESS ENVIRONMENT CHANGES, (2) YOU ARE FREE TO DECIDE, AND ARE RESPONSIBLE FOR DECIDING, WHEN TO UPGRADE YOUR SOFTWARE, AND (3) OPUSXENTA DISCLAIMS ANY RESPONSIBILITY TO DELIVER LATER-RELEASED SOFTWARE OR OTHERWISE RENDER ANY CUSTOMER SUPPORT SERVICES UNLESS INCLUDED IN A SERVICE PLAN THAT YOU HAVE PAID FOR IN FULL. 

f.      WITHOUT LIMITING THE FOREGOING, OPUSXENTA MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

g.     Other Limitations. OpusXenta will have no responsibility under these limited warranties for any Software or media that has been modified, lost, stolen, or damaged by accident, abuse, or misapplication. No employee, agent, or representative of OpusXenta, nor any reseller or any other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this Agreement, and You may not rely on any such unauthorized warranty.

 

8.     EXCLUSIONS OF AND LIMITATION OF LIABILITY. 

a.     You acknowledge that software is inherently complex and may not be free from errors and that You have been advised to verify the work produced by the Software.

b.     IN NO EVENT SHALL OPUSXENTA OR ANY OF ITS SUPPLIERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY; (III) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (IV) COST OF REPLACEMENT GOODS OR SERVICES; (V) LOSS OF GOODWILL OR REPUTATION; OR (VI) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

c.     IN NO EVENT SHALL OPUSXENTA’S LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, YOUR SERVICE PLAN, OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE LESSER OF: (i) THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM, OR (ii) THE FEES ACTUALLY PAID BY YOU TO PURCHASE OR RENEW YOUR SOFTWARE SUBSCRIPTION LICENSE AND ANNUAL SERVICE PLAN IN EFFECT WHEN THE CLAIM AROSE. You acknowledge and agree that this Agreement allocates risk between You and OpusXenta as authorized by applicable law and that the pricing of OpusXenta products reflects this allocation of risk and the exclusions and limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect. 

d.     You acknowledge that unless You and OpusXenta agree in writing for OpusXenta to provide software implementation services to implement the Software at Your place of business, You are responsible for engaging a qualified party to provide implementation services for You on terms You negotiate. You also acknowledge that You are responsible for independently investigating the skills and qualifications of such party to ensure that they provide You with the level of skill and service Your business requires. You agree that OpusXenta shall have no liability whatsoever for any failure associated with such implementation services, even if the party You engage is recommended by OpusXenta, or an authorized or certified consultant or installer of OpusXenta products. 

 

9.     JURISDICTIONAL RIGHTS. This Agreement gives You specific legal rights, and You may also have other rights, which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some or all of those sections of this Agreement may not apply to You. 

 

10.  TERM AND TERMINATION. This Agreement is effective from the date You agree to be bound (as set forth in the notice at the beginning of this Agreement), and continues until terminated in accordance with this Section 10. 

a.     If You acquire a Software Subscription License: 

                                               i.     The “Initial Term” will run for one (1) year for byondpro and one (1) month for byondlcoud unless You are offered and select a longer subscription term when You acquire Your initial Software Subscription License; in such event, the longer subscription term will be Your Initial Term. Your Initial Term will automatically continue to renew thereafter for the same subscription term (Your “Renewal Term).” Payment is due for the full length of Your Initial Term and each Renewal Term and is non-cancellable and non-refundable (except as described in Sections 7.a and 12.b, and in Section 10.a.ii immediately below), even if You cancel or choose not to renew Your Software Subscription License.

                                              ii.     You may choose not to renew Your Software Subscription License or to reduce the number of Your Software Subscription License users by providing Your non-renewal or reduction request to OpusXenta at [email protected]. Your request must include Your OpusXenta customer number, Your company name, a company contact name, a company phone number or email, and the name of the Software. OpusXenta must receive Your request at least one (1) month prior to the end of Your Initial Term or current Renewal Term in order for the request to take effect at the end of Your Initial Term or current Renewal Term (the “Termination Date”). If Your non-renewal or reduction request is received less than one (1) month before but by the end of the Initial Term or the Renewal Term, OpusXenta may charge and You agree to pay a processing fee equal to the pro-rated cost for one (1) month of Your subscription term to process Your request. Requests received after the Termination Date will be applied to the following Renewal Term.

                                             iii.     You shall be solely responsible (i) for all Software Subscription License fees and processing fees that fall due before or after the Termination Date, and (ii) for retrieving Your data from the Software within thirty (30) days after the Termination Date. 

b.     If You acquire an Evaluation License, the Evaluation License will expire at the end of the evaluation period provided by OpusXenta, or if no evaluation period end date is provided, Your Evaluation License shall expire thirty (30) days after OpusXenta makes the Software available to You for evaluation. 

c.     Notwithstanding the foregoing, this Agreement and the license granted to You will terminate automatically and without notice if You fail to comply with any term or condition of this Agreement, including but not limited to the payment of all license fees when due. THE SOFTWARE MAY CONTAIN TECHNOLOGY THAT ALLOWS OPUSXENTA TO TERMINATE YOUR USE OF THE PROGRAM OR CONVERT YOUR ACCESS TO THE PROGRAM TO READ-ONLY IN THE EVENT YOU MATERIALLY BREACH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, YOUR FAILURE TO PAY LICENSE FEES WHEN DUE. IF OPUSXENTA CONVERTS YOUR ACCESS TO READ-ONLY, YOU WILL CONTINUE TO HAVE ACCESS TO DATA YOU ENTERED BEFORE THE CONVERSION BUT WILL NOT BE ABLE TO ENTER NEW DATA. 

d.     Upon termination or expiration of Your Evaluation License, and (i) if You purchase a Software Subscription License, You acknowledge and agree that this Agreement shall govern Your continued Use of the Software, or (ii) if You do not purchase a Software Subscription License, You shall comply with OpusXenta instructions for returning the Software. If no instructions are provided, You shall follow the return and destroy instructions set out in Section 10.e, below. 

e.     Immediately after the termination or expiration of Your Software Subscription License, or this Agreement, You shall return the Software to OpusXenta and destroy all other Software copies in Your possession or control. 

f.      Any provision in this Agreement which when reasonably read as intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of warranties and limitations of liability. 

 

11.  DISPUTE RESOLUTION, WAIVER OF COLLECTIVE OR CLASS ACTION, CHOICE OF LAW, STATUTE OF LIMITATIONS, AND LANGUAGE.

a.     Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved in accordance with this Section 11.

b.     Unless a party has complied with Sections 11.c and 11.d that party may not commence court proceedings or arbitration relating to any dispute arising from this Agreement. Notwithstanding the foregoing, where a party seeks urgent interlocutory relief that party need not comply with this clause before seeking such relief.  Where a party fails to comply with Sections 11.c and 11.d, any other party in dispute with the party failing to comply need not itself comply with this clause before commencing court proceedings relating to that dispute.

c.     Any party raising a dispute under this Agreement either with the other party must give written notice to the other party providing full details of the dispute.  The notice must designate a person (with absolute authority to settle the dispute) to represent that party. The party receiving such notice must within five (5) business days give notice in writing to the other party designating a person (with absolute authority to settle the dispute) to represent that party.

d.     The designated persons must, within five (5) business days of the last designation required by Section 11.c, commence good faith negotiations to seek to resolve the dispute.  If the Dispute has not been resolved at the expiration of that period or if a party fails to designate a representative within the period stipulated in Section 11.c. and 11.d the party raising the dispute may pursue any remedy it deems fit, including institution of court proceedings.

e.     ANY CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER IT AROSE, OTHERWISE THE CLAIM OR CAUSE OF ACTION SHALL BE BARRED, EXCEPT THAT THE FOREGOING LIMITATION AND THE DISPUTE RESOLUTION PROVISIONS SHALL NOT APPLY TO THE ENFORCEMENT BY OPUSXENTA OF YOUR PAYMENT OBLIGATIONS AND ANY OPUSXENTA INTELLECTUAL PROPERTY RIGHTS. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

 

12.  INDEMNIFICATION. 

 

a.     You shall indemnify and keep indemnified and hold OpusXenta, its officers, employees, consultants and agents harmless from and against any and all losses, including reasonable legal expenses imposed upon, incurred by or asserted against OpusXenta on whatever legal grounds in connection with the use or application of the Software by You or any failure by You to perform or comply with this Agreement.

b.     If You receive notice of any claim that Your use of any part of the Software infringes any third party’s intellectual property right in a patent, copyright, or trade secret (an “Indemnity Claim”), OpusXenta shall defend and shall indemnify and hold You harmless by paying any resulting costs and damages finally awarded by a court with respect to any such Indemnity Claim provided that You: 

                                               i.     Notify OpusXenta in writing promptly upon becoming aware of the Indemnity Claim, 

                                              ii.     At OpusXenta’s request and expense, give OpusXenta such information and assistance as is reasonable under the circumstances, and 

                                             iii.     Give OpusXenta the right to settle the Indemnity Claim in OpusXenta’s sole discretion and at OpusXenta’s expense. 

This indemnification does not extend to any Indemnity Claim arising from the combination of the Software with other elements not under OpusXenta’s sole control, or arising from any part of the Software that You or a third party modify, or that incorporates specifications, designs or formulas that You provide. If You are prevented from Using the Software because of an actual or claimed infringement, then at OpusXenta’s option, OpusXenta shall promptly either obtain for You the right to continue Using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing, or if none of the foregoing alternatives are possible after OpusXenta exercises commercially reasonable efforts, You may terminate this Agreement and Your Service Plan, and OpusXenta shall ensure that You receive a refund of or credit for any prepaid but unused portion of the Software Subscription License fees paid by You for the Software. 

c.     THIS SECTION 12 SETS OUT OPUSXENTA’S ENTIRE FINANCIAL LIABILITY FOR ANY INDEMNITY CLAIM. 

 

13.  LATE FEES; AUDIT RIGHTS.

a.     With or without prior notice, OpusXenta may audit Your Use of the Software to ensure that You comply with the terms and conditions of this Agreement. If an audit reveals that You have underpaid fees or owe fees to OpusXenta, OpusXenta will invoice You for the underpayment or amount due based on the OpusXenta price list in effect at the time the audit is completed.  You shall pay the costs of such audit if it shows that you have underpaid by five percent (5%) of more during the period covered by such audit. 

b.     If You fail to make any payment when due then, in addition to all other remedies that may be available to OpusXenta:

                                               i.     OpusXenta may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;

                                              ii.     You shall reimburse OpusXenta for all costs incurred by OpusXenta in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees; and

                                             iii.     if such failure continues for 30 days following written notice thereof, OpusXenta may: (i) disable Your use of the Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 10.c.

 

14.  SERVICE PLAN. Service Plan information for OpusXenta products is provided through the OpusXenta OpusCARE customer care program, a copy of which will be provide to You on request via email at [email protected].

 

15.  FEE INCREASES. OpusXenta may increase its license and other fees at any time, and You acknowledge and agree that fees due for new or additional Software license or subscription purchases may be more than a previous purchase. OpusXenta will notify You of a price increase as soon as is practicable before the increase takes effect. You are responsible for providing OpusXenta with Your most current contact and billing information. You may provide updates to Your contact information to OpusXenta at [email protected] and updates to Your billing information to OpusXenta at [email protected]. You agree that, so long as Your Software Subscription License is active, OpusXenta may, on a monthly basis, automatically bill the same credit card or bank account You provide to OpusXenta.

 

16.  MONITORING/PERSONAL INFORMATION. The Software may contain technologies that monitor, record and report to OpusXenta information regarding the installation and use of the Software, including but not limited to information concerning the computer or workstation, or personal digital assistant, “smart phone” or other similar electronic device with which the Software operates; the frequency, type and manner of use to which the Software is put; the updating of programs and conversion of data, and the data inputted to or through the Software by You or on Your behalf, such as company data, payroll data, check data, and other transaction-identifying information (collectively, the "Transaction Data"). OpusXenta collects and uses the Transaction Data to support, maintain, and improve the Software, and to enforce OpusXenta's rights under this Agreement. To the extent any of the Transaction Data is personal information within the meaning of applicable law, You hereby: (a) consent to OpusXenta's collection, use and disclosure of such Transaction Data for these purposes; and (b) represent and warrant that You have obtained the consent of any individual to whom such Transaction Data relates to OpusXenta's collection, use and disclosure of such Transaction Data for these purposes, or that the consent of any such individuals is not required to be obtained under applicable law. 

 

17.  AUTOMATIC UPDATES. The Software may contain automatic update technology, a feature used to provide Maintenance Software such as bug fixes, patches, enhanced functions, missing plug-ins, and new versions. This feature cannot be disabled. This feature will: (i) connect to OpusXenta or service provider computer systems over the Internet, (ii) use Internet protocols to recover standard computer information in order to determine whether Maintenance Software is required, and (iii) automatically download and install, or prompt You to download and/or install, current Maintenance Software. By installing or using the Software initially, You consent to the transmission of standard computer information and the automatic downloading and installation of Maintenance Software. 

 

18.  ENTIRE AGREEMENT AND SEVERABILITY. This Agreement represents the complete and exclusive understanding between You and OpusXenta regarding the Software and Your Service Plan and supersedes any prior purchase order, confirmation, advertising, representation, or other communication. This Agreement may not be modified except by a written agreement signed by You and an authorized OpusXenta representative. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision which conforms to applicable law and embodies as closely as possible the original intent of the parties. 

 

19.  GOVERNING LAW. This Agreement shall be governed by and construed according to the laws in force in Texas and the parties agree to submit to the non-exclusive jurisdiction of the Courts of Tarrant County, Texas.

 

You hereby give OpusXenta permission to send You information regarding OpusXenta products and services by various delivery methods, including by post, facsimile and email.