OPAQ Terms & Conditions
THESE TERMS AND CONDITIONS, TOGETHER WITH AN ORDER, FORM THE “AGREEMENT” BETWEEN OPAQ NETWORKS, INC. A DELAWARE CORPORATION WITH ITS HEADQUARTERS LOCATED AT 2553 DULLES VIEW DRIVE, SUITE 100, HERNDON, VIRGINIA 20171 (“OPAQ”), AND THE CUSTOMER IDENTIFIED ON THE ORDER (“CUSTOMER”). THIS AGREEMENT BECOMES BINDING WHEN CUSTOMER AND OPAQ HAVE MUTUALLY EXECUTED AN ORDER, INSERTION ORDER OR OTHER PURCHASING DOCUMENT FOR SERVICES PROVIDED BY OPAQ (EACH, AN “ORDER”).
1. SERVICES.
OPAQ agrees to provide the services as identified in an Order (collectively, the “SERVICES“). The Services may include, without limitation, Subscription Services (including delivery of Licensed Materials), Support Services and Non-Recurring Services, each as defined in this Agreement.
1.1 Subscription Services.
(a) During the Subscription Term set forth on an Order (the “SUBSCRIPTION TERM“), OPAQ agrees to provide Customer with access to OPAQ’s proprietary software known as “OPAQ360”, as further described in the Order (the “SUBSCRIPTION SERVICES“). Access to the Subscription Services will be through one or more websites designated by OPAQ (the “PLATFORM“). Access is limited to the scope and use restrictions set forth in the Order and subject to the terms and conditions of this Agreement. Customer may only access the Subscription Services during the Subscription Term and may only use the Subscription Services for its internal business purposes.
(b) As part of the Subscription Services, OPAQ may deliver to Customer certain hardware, software, documentation or Appliances (as hereinafter defined) that are owned or licensed by OPAQ (the “LICENSED MATERIALS”). Subject to Customer’s strict compliance with the terms of this Agreement, OPAQ hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Licensed Materials during the Subscription Term, solely for Customer’s internal business operations. Customer’s right to use the Licensed Materials is strictly limited to the use restrictions set forth in the Order. OPAQ reserves and retains all right, title and interest in, and ownership of, the Licensed Materials. Except as set forth in this Section 1.1(b), nothing in this Agreement may be interpreted as an implied license or to require OPAQ to deliver a copy of any software or other product utilized by OPAQ to provide the Subscription Services.
(c) The Subscription Services (including all Licensed Materials delivered hereunder) may be used only by employees or contractors of Customer who are acting on Customer’s behalf in the internal operation of its business (“AUTHORIZED END USERS“). Customer shall be fully responsible for compliance with this Agreement by, as well as the acts and omissions of, all users who access the Subscription Services under their Authorized End User login credentials or through Customer’s systems, to the full extent as if such end users are employees or agents acting on Customer’s behalf within the scope of their duties. Customer shall not authorize access to or permit use of the Subscription Services by persons other than Authorized End Users and Customer may not grant access to more users than the user count set forth on the Order. Customer shall ensure that no more than one Authorized End User will have access to or will use each Authorized End User login credentials. OPAQ may, at any time and without any liability to Customer, suspend an end user’s access to the Subscription Services in the event OPAQ reasonably believes that such end user has violated any provision of this Agreement.
(d) OPAQ will provide the Subscription Services in accordance with the support and service level, viewable at opaqnetworks.com/sla (the “SLA”) and incorporated herein by reference.
1.2 Non-Recurring Services. Customer may elect to order non-recurring services related to its purchase of the Subscription Services, which may include, without limitation, implementation, integration, installation or activation services, as further described in an Order (“NON-RECURRING SERVICES”). Any Non-Recurring Services to be provided will be included in an Order, with additional terms set forth in a statement of work, as applicable. OPAQ shall be under no obligation to perform Non-Recurring Services until an Order or statement of work in relation thereto has been mutually executed. If the Non-Recurring Services involve the delivery of any work product, developments, inventions, technology or materials (collectively, “DELIVERABLES“) except to the extent that such Deliverables include Customer Content or Customer’s Confidential Information (as hereinafter defined), OPAQ shall retain ownership of all Deliverables. OPAQ grants to Customer a non-exclusive right and license to use the Deliverables solely for its internal business purposes.
2. RESTRICTIONS; AUDIT.
2.1 Restrictions. Customer shall not (a) directly or indirectly sell, lease, rent, redistribute, assign (except as expressly permitted in this Agreement) or transfer the Services, or any rights therein, to any third party; (b) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, creating derivative works of, copy, sublicense or distribute the Services; (c) use the Services for the benefit of any third parties (g., in an ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (d) remove, alter or obscure any proprietary notice, labels or marks on any component or portion of any Services; (e) disable or circumvent any access control or related device, process or procedure present within the Services; and/or (f) to the extent that any software is delivered as part of an Appliance, use such software independent of the Appliance or in any manner except as embedded within the Appliance. The rights granted to Customer in Section 1 are subject to and contingent on Customer’s compliance with the restrictions set forth in this Section 2.1.
2.2 Intellectual Property. OPAQ, for itself and on behalf of its licensors, reserves all rights in and to the Services that are not expressly granted to Customer in this Agreement. Except as specifically set forth in this Agreement, OPAQ owns all rights, title and interest in and to the Services. All rights, title and interest in and to any and all upgrades, improvements, modifications, derivative works and innovations involving the Services will be retained in full and owned by OPAQ. Customer agrees not to challenge, directly or indirectly, the right, title, and interest of OPAQ in and to the Services, and further agrees not to directly or indirectly, register, apply for registration, or attempt to acquire any legal protection for any of the Services.
2.3 Audit. With reasonable notice and not more frequently than once per calendar year (unless deficiencies are found, in which case as frequently as is required to ensure that deficiencies are eliminated), OPAQ may periodically carry out an audit of Customer’s facilities and systems to ensure Customer’s compliance with the terms of this Agreement. Customer will reasonably cooperate with OPAQ in such an exercise and provide OPAQ with reasonable access to Customer’s personnel, facilities and systems to enable OPAQ’s audit. OPAQ shall reasonably endeavor not to disrupt Customer’s normal business activities and shall perform the audit in a professional manner. Any discrepancies shall be promptly disclosed to and remedied by Customer. OPAQ shall bear the cost of the audit except where a material discrepancy with a value of more than US$10,000 is discovered, whereupon Customer shall bear the cost of the audit.
3. TREATMENT OF CONTENT
3.1 Customer Content. As between the Parties, Customer owns all data, imagery, information and other content transmitted by or on behalf of Customer in connection with the Services (the “CUSTOMER CONTENT”). OPAQ does not control and is not responsible for the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Customer Content and Customer is solely responsible for its use of all such content. Customer hereby grants to OPAQ a non-exclusive license to use, store, process, analyze and transmit Customer Content during the Subscription Term as reasonably necessary to perform the Services in accordance with this Agreement. Customer shall provide to OPAQ the Customer Content in compliance with applicable laws and shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for OPAQ’s use of the Customer Content as contemplated by this Agreement. OPAQ’s shall use and process the Customer Content in compliance with its Privacy Policy, accessible at opaqnetworks.com/privacy and incorporated herein by reference, and Customer consents to such use of Customer Content.
3.2 Systems Use. OPAQ may use and disclose data regarding Customer’s use of the Services or included in Customer’s accounts, so long as any use and disclosure of such data outside of OPAQ is aggregated with other data collected by OPAQ so that it cannot be identified with Customer or an Authorized End User.
3.3 Feedback. Customer hereby assigns in whole to OPAQ (without charge or royalty) any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer related to the Services (collectively, “FEEDBACK”). OPAQ acknowledges that Feedback is provided “AS IS” and without warranty.
4. PAYMENT.
4.1 Fees Payable. Customer agrees to pay all fees, expenses and amounts stated in each Order (“FEES”) at such times as the Order requires. Customer agrees to pay all Fees, without offsets or other deductions, no later than the date when they are due. If an Order does not specify a payment date, Customer will make all payments no later than thirty (30) days from the date set forth on OPAQ’s invoice. Where Customer’s policies require the issuance of a purchase order, Customer shall ensure that such purchase order is issued concurrently with its execution of an Order and the purchase order shall authorize the full contract value set forth on the Order. Except as specifically set forth herein, all fees are non-refundable and all Services are non-cancellable.
4.2 Excess Utilization Charges. Certain Fees are calculated based upon Customer’s utilization of the Subscription Services. Where Customer’s actual use of the Subscription Services during the measurement period exceeds the usage quantities stated on the Order, OPAQ will invoice Customer for the excess utilization of the Subscription Services, at the excess utilization rates set forth in the Order (the “EXCESS UTILIZATION CHARGES”). Excess Utilization Charges will be invoiced monthly in arrears. Excess Utilization Charges are due in addition to any recurring charges.
4.3 Additional Charges for Late Payments. If Customer fails to make any payment when due, OPAQ will have the right, without prejudice to any other remedies it may have, to charge an additional fee equal to one-and-one-half percent (1.5%) of the overdue amount for each full or partial month that the amount remains unpaid.
4.4 Suspension of Services. In addition to its right to terminate this Agreement as set forth in Section 11, OPAQ may, at its sole discretion, delay delivery of the Services, suspend Customer’s access to and use of the Subscription Services, and/or suspend Support in the event Customer fails to timely pay all outstanding and past due invoices, until Customer has paid the full balance owed, plus any interest due in accordance with Section 4.2.
4.5 Tax Responsibilities. Unless otherwise stated, OPAQ’s fees do not include any applicable sales, use, or similar taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, but excluding taxes on OPAQ’s income or assets (collectively, “TAXES“). Customer is responsible, and OPAQ shall have no liability, for paying all Taxes applicable to Customer’s purchases hereunder. If OPAQ elects to pay or collect any such Taxes, the appropriate amount of such Taxes shall be invoiced to and paid by Customer unless Customer provides OPAQ with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. CUSTOMER RESPONSIBILITIES.
5.1 Acceptable Use of the Service. Customer shall use the Services and provide the Customer Content in compliance with all applicable laws and regulations and in compliance with OPAQ’s Acceptable Use Policy, accessible at opaqnetworks.com/aup and incorporated herein by reference. Without limiting the foregoing, Customer agrees not to use the Service in connection with any: (a) infringement or misappropriation of any intellectual property rights; (b) defamation, libel, slander, obscenity, or violation of the rights of privacy or publicity of any person or entity; or (c) other offensive, harassing, or illegal conduct.
5.2 Connectivity. Except as set forth on an Order, Customer is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary to access and use the Subscription Services via the Platform.
5.3 Onsite Services. Where the Services require access to Customer’s facilities, (i) Customer will grant OPAQ and its agents and contractors access to and use of Customer’s facilities to the extent reasonably necessary for the testing, installation, connection, removal, and maintenance of equipment, facilities, and systems relating to the Services; and (ii) Customer agrees to reimburse OPAQ for all actual travel and related expenses incurred by OPAQ in providing Services at such facilities.
5.4 Appliances. OPAQ may require Customer, as a condition to receiving Service, to use equipment supplied by OPAQ or its suppliers (“APPLIANCES”). Customer shall not rearrange, disconnect, modify, tamper with, attempt to repair, or otherwise interfere with the Appliances, nor shall Customer permit any third party to do so. Customer will not create or allow any liens or other encumbrances to be placed on any such Appliances. If Customer relocates or changes the place of the Service provided under any Order, Customer will pay all additional installation and related charges associated with such relocation. All Appliances shall remain the exclusive property of OPAQ or its suppliers, as applicable. Within thirty (30) days of expiration or termination of this Agreement for any reason, Customer shall return the Appliances to OPAQ, per OPAQ’s shipping instructions. OPAQ has the sole discretion to design and provision the underlying infrastructure as it deems necessary to provision the Services pursuant to this Agreement.
6. THIRD PARTY SERVICES. OPAQ may make available to Customer certain third-party products or services, as set forth in an Order or provided in conjunction with the Services (“THIRD PARTY SERVICES”). Any Third Party Services utilized by Customer as part of the Services are subject to separate terms and conditions, which may include separate fees and charges, even if OPAQ acts as an ordering and billing agent and includes such fees and charges on its invoices to Customer. OPAQ assumes no responsibility or liability whatsoever for any Third Party Services. Customer is solely responsible for any Third Party Services that it installs or uses with the Services. OPAQ does not endorse any Third Party Services and disclaims all warranties for the Third Party Services.
7. CONFIDENTIALITY. “CONFIDENTIAL INFORMATION” means any information disclosed by one Party (“DISCLOSING PARTY”) to the other Party (“RECEIVING PARTY”) which: (a) if disclosed in writing or electronically, is labeled as proprietary or confidential at the time of disclosure; (b) if disclosed orally, is identified as proprietary or confidential at the time of such disclosure, and is then summarized in a writing provided to the Receiving Party within one (1) month of the date of such disclosure; or (c) by its nature is confidential and would be judged so under a reasonable standard, or is disclosed or provided under circumstances reasonably indicating it is confidential or proprietary. The terms and conditions of the Agreement, non-public information regarding the Services (including, without limitation, any source code), and any Feedback, is the Confidential Information of OPAQ. Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by the Agreement, the Receiving Party shall not use any Confidential Information of the Disclosing Party for its own account. The Receiving Party shall use the same standards to protect the Confidential Information of the Disclosing Party as it affords its own such information, but in no event less that the highest commercially reasonable degree of care. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party without the express written consent of the Disclosing Party (except solely for Receiving Party’s internal business needs, to employees or consultants who have a need to know such information and who are bound by a written agreement or professional obligation to restrict the disclosure and use of such Confidential Information in a manner consistent with the Agreement). The foregoing obligations will not restrict a Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Party required to make such disclosure provides reasonable notice to the other Party to enable them to contest such order or requirement, unless such Party is prevented from doing so by force of law. The restrictions set forth in this Section 7 shall not apply to the identities of the Parties, or to any Confidential Information that: (i) was or becomes available to the public other than by a breach of the Agreement by the Receiving Party; (ii) was rightfully received by Receiving Party without confidential or proprietary restriction from a third party who has a right to disclose it; (iii) was independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iv) was known to the Receiving Party at the time of disclosure, without confidential or proprietary restriction; (v) was produced in compliance with applicable law or a court order; provided, that the Disclosing Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production; or (vi) was approved by the Disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized representative of the Disclosing Party.
8. LIMITED WARRANTY AND DISCLAIMER.
8.1 Mutual Representations. Each party represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
8.2 OPAQ Warranties. OPAQ warrants that:
(a) The Subscription Services will perform in accordance with its then-current SLA. If the applicable Subscription Service fails to achieve the service levels so specified, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Subscription Service in accordance with the terms set forth in the SLA, provided, that (i) Customer notifies OPAQ in writing of any such service failures within fifteen (15) days of its occurrence and (ii) Customer is not delinquent on any payment obligations to OPAQ.
(b) OPAQ further represents and warrants that all Non-Recurring Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. Customer’s sole remedy in the event of a breach of this warranty shall be for OPAQ to re-perform the Non-Recurring Services at no cost to Customer, provided, that Customer notifies OPAQ in writing of any such deficiency within fifteen (15) business days of delivery of the applicable Non-Recurring Service.
8.3 EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY OPAQ ARE PROVIDED “AS IS,” AND OPAQ DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. OPAQ DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY OPAQ WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.
9. INDEMNIFICATION
9.1 Indemnification of Customer.
(a) OPAQ agrees to defend or settle any claim brought against Customer by an unaffiliated third party arising from (i) OPAQ’s gross negligence or willful misconduct, or (ii) allegations that Customer’s use of the Services as authorized by this Agreement infringes such third party’s patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights, trademarks or trade secret rights under applicable laws (an “INFRINGEMENT CLAIM”). OPAQ shall pay all amounts that are finally awarded against Customer based on any such claims by a court of competent jurisdiction or any amounts that OPAQ has agreed to pay in settlement of the relevant third-party claim.
(b) If an Infringement Claim is made or appears possible, Customer agrees to permit OPAQ, at OPAQ’s sole discretion, to: (i) enable Customer to continue to use the Services; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and in the case of this clause (iii), OPAQ shall in connection with such requirement refund unearned pro rata portion of fees attributable to the materials or portion of the Services with regard to which the use is discontinued.
(c) OPAQ will have no obligation to indemnify where the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of any OPAQ product or services; (ii) combination, operation or use of any OPAQ products or service with other software, hardware, systems or technologies not provided by OPAQ or explicitly authorized by the Documentation; (iii) Customer’s breach of Sections 2.1 or 5; or (iv) Customer’s use of the Services other than in accordance with the Documentation.
(d) THE PROVISIONS OF THIS SECTION 9 SET FORTH OPAQ’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9.2 Indemnification of OPAQ. Customer shall defend or settle any claim brought against OPAQ by an unaffiliated third party arising from (i) Customer’s gross negligence or willful misconduct; or (ii) Customer’s breach of Sections 2.1 or 5. Customer shall pay all amounts that are finally awarded against OPAQ based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.
9.3 Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “INDEMNIFIED PARTY“) shall: (i) give prompt written notice to the indemnifying party (the “INDEMNIFYING PARTY“) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY CLAIM THAT ARISES FROM OR RELATES IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION ALLEGED, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY OF ANY KIND. OPAQ SHALL NOT BE LIABLE, IN CONTRACT, TORT OR ANY OTHER THEORY FOR: (A) UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION OR DESTRUCTION OF OR TO CUSTOMER’S OR ITS END USERS’ OR OTHER PARTIES’ COMPUTER FILES, DATABASES, NETWORK, TRANSMISSION FACILITIES OR EQUIPMENT; OR (B) THE CONTENT, ACCURACY OR COMPLETENESS OF ANY CUSTOMER CONTENT TRANSMITTED THROUGH THE SERVICES. EXCLUDING (i) CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER, (ii) EITHER PARTY’S INDEMNFICATION OBLIGATIONS, AND (iii) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY THE CUSTOMER FOR THE APPLICATION SERVICES DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
11. TERM; TERMINATION.
11.1 Term. This Agreement will be in effect as of the effective date set forth on an Order and continue until the Subscription Terms under all Orders have expired, unless terminated sooner as provided herein. Except as otherwise specified in an Order, the Subscription Term under an Order will automatically renew for successive twelve-month periods unless either party gives the other party notice of non-renewal at least 60 days before the end of the Access Term (each, a “RENEWAL TERM”).
11.2 Termination.
(a) Breach. Either Party may terminate this Agreement and all licenses granted by OPAQ to Customer hereunder upon thirty (30) days’ prior written notice if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days following receipt of notice specifying the breach.
(b) Insolvency. Either Party shall have the right to terminate this Agreement immediately upon written notice in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty (30) days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.
(c) Termination for Convenience. If Customer terminates this Agreement or an Order for any reason other than as set forth in Sections 11.2(a) or (b), Customer shall pay to OPAQ a sum equal to 100% of the Fees Customer would have had to pay for the remaining Subscription Term for all terminated Orders and any Taxes due in accordance with Section 4 (the “TERMINATION FEE”). Customer acknowledges and agrees that: (a) OPAQ is only agreeing to provide Customer a right to terminate for convenience conditioned upon Customer’s payment of the Termination Fee, and that absent payment of the Termination Fee, Customer shall have no right to terminate this Agreement or any Order under this Section 11.2(c); (b) OPAQ will incur considerable consequences and losses in the event Customer terminates this Agreement for convenience prior to the expiration of the Subscription Term; (c) such consequences and losses would be difficult, if not impossible to estimate; and (d) the Termination Fee is a reasonable pre-estimate of the consequences and losses that OPAQ would actually incur in the event Customer terminates this Agreement early.
(d) Effect of Termination. Effective immediately upon expiration or termination of this Agreement, (i) Customer shall cease, and shall direct its Authorized End Users to cease use of the Services; (ii) neither party will have continuing rights to use any Confidential Information of the other party or to exercise any intellectual property rights having been granted to it by the other party under this Agreement; (iii) if a party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the party will make payment in full within ten (10) business days after the expiration or termination; and (iv) Customer shall return any Appliances in its possession in accordance with Section 5.4 of this Agreement. All warranty disclaimers, use restrictions and provisions relating to OPAQ’s intellectual property ownership, shall survive the termination or expiration of this Agreement. Termination in accordance with this Agreement shall be without prejudice to any other rights or remedies of the Parties.
12. Miscellaneous.
12.1 Legal Compliance; Restricted Rights. Each Party agrees to comply with all applicable l Without limiting the foregoing, Customer agrees to comply with all U.S. export laws and applicable import laws of Customer’s locality (if Customer are not located in the United States), and Customer agrees not to export any Services without first obtaining all required authorizations or licenses. If any Software is being licensed under the terms of a proposal or agreement with the U.S. Government or on the U.S. Government’s behalf, the Software is commercial computer software and both the Software and the Documentation are developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 12.212 of the Federal Acquisition Regulation and its successors; or (b) if acquired by or on behalf of units of the Department of Defense (“DOD”), shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 227.7202, Defense Federal Acquisition Regulation Supplement and its successors.
12.2 Governing Law; Severability. This Agreement is governed by the laws of the Commonwealth of Virginia, without regard to choice-of-law provisions. Each party hereby agrees that any and all causes of action between the parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located within the Commonwealth of Virginia. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law, and the remainder of this Agreement shall remain in full force and effect. Customer and OPAQ agree that this Agreement is not governed by the U.N. Convention on Contracts for the International Sale of Goods.
12.3 Notices. Any notices under this Agreement will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified in this Agreement or such other address as a Party may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All notices to OPAQ shall be sent to the attention of the Chief Financial Officer (unless otherwise specified in writing by OPAQ).
12.4 Assignment. Customer may not assign or otherwise transfer this Agreement to any third party without OPAQ’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.
12.5 Force Majeure. OPAQ will not be liable for any delay or failure due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, and force majeure events and other causes beyond OPAQ’s reasonable control.
12.6 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile or scanned signatures.
12.7 Publicity. Customer agrees that OPAQ may disclose this relationship as part of its quarterly earnings announcements and include Customer’s name in a representative customer list. Customer further agrees that OPAQ may use Customer’s corporate name and logo in OPAQ’s marketing materials, including identification on the OPAQ website, and, subject to Customer’s review, issue a press release indicating that Customer has elected to use Services.
12.8 Security. Where available and applicable, OPĀQ Networks shall provide Customer with the results of any third party security audit (including without limitation SOC 2 Type II). In the event of a security breach that results in unauthorized destruction, loss, alteration or theft of, or unauthorized access to, Customer Data or Customer Content (each such incident, a “SECURITY BREACH,”) OPĀQ shall notify Customer as soon as reasonably practicable to Customer’s primary business contact, describing the Security Breach with reasonable specificity.
12.9 General. This Agreement, including its exhibits (all of which are incorporated herein), are collectively the Parties’ complete agreement regarding its subject matter, superseding any prior oral or written communications. Amendments or changes to this Agreement must be in writing and signed by an authorized representative of each Party to be effective. Each Party represents and warrants that the individual executing this Agreement on its behalf has the requisite power and authority to sign this Agreement on behalf of such Party. The Parties agree that, to the extent any Customer purchase order or similar document contains terms or conditions that conflict with, are different from or in addition to this Agreement, such terms and conditions shall be void and have no effect, and the provisions of this Agreement shall control. The Parties are independent contractors for all purposes under this Agreement, and nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties.
