Terms of Use

LICENSE GRANT: OPSLOGIX hereby grants CUSTOMER a non-transferable, non-exclusive, non-assignable right to use, display, copy, load and run OpsLogix product related thereto on any compatible computer platform at the CUSTOMER's location only for the internal purposes of the CUSTOMER. If the product is a Software tool, then a license was issued to the CUSTOMER for an evaluation period (hereinafter "Evaluation Period"), the Evaluation Period commences on the date of delivery of the Software to CUSTOMER and ends no more than 30 days later at no charges to the CUSTOMER. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE WILL BE RENDERED INOPERATIVE AFTER THIS EVALUATION PERIOD. If a license has been purchased by the CUSTOMER, the foregoing license is restricted to the Microsoft Systems Center Operations Manager management group. License change may be initiated if Microsoft Systems Center Operations Manager management group changes by temporarily using a time-limited license that must be valid for no shorter than 30 days. After this period the new time-limited license will replace the currently held perpetual license. Notwithstanding the foregoing or anything to the contrary herein, CUSTOMER and its wholly or partially owned subsidiaries, divisions, and affiliates may from time-to-time without restriction use any of the Services; where Services means additional test and development licenses, purchased by CUSTOMER hereunder.
TITLE: CUSTOMER acknowledges that title to the OpsLogix product and/or Software, including all intellectual property rights related thereto, is and shall remain the sole and exclusive property of OPSLOGIX and / or its licensors.
LIMITATION OF LIABILITY: Except with regard to OPSLOGIX’s indemnity obligations regarding a claim of third party intellectual property infringement or a breach of undisclosed information, or the gross negligence or willful misconduct of OPSLOGIX, a Party shall not be liable to the other for any consequential, indirect or special damages or lost revenues or profits, including, without limitation, consequential or special damages for work stoppage or loss of work product data caused by the use or inability to use this Software, even if OPSLOGIX has been advised of the possibility or such damages or losses. The Software is not specifically designed for high-risk applications including situations where the failure of such software would threaten lives or cause extensive material damages. Such applications include operating parts of nuclear power plants, weapon systems, equipment designed for sustaining people's basic bodily functions, etc. In case Customers wants compensation for damages out of using the product, Customer is entitled to initiate a legal procedure in accordance to article 6:74 B.W. for non-performance where B.W. means “Burgerlijk Wetboek” (translation: civil code).
Undisclosed information
Undisclosed information shall mean according to Article 39 TRIPS information of a Party to this Agreement that the information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret
The OpsLogix product and/or Software provided to the CUSTOMER constitutes Undisclosed Information and trade secrets of OPSLOGIX and / or its licensors. CUSTOMER shall not disclose the OpsLogix product and/or Software to any third party other than employees of CUSTOMER involved with evaluation of the Software and shall use the same degree of care to avoid disclosure as the CUSTOMER employs with respect to its own Undisclosed Information. The CUSTOMER shall not reverse engineer, disassemble or decompile the Software. Any OPSLOGIX designations, logos, trade names or trademarks on the Software shall not be removed or altered. The Parties acknowledge and agree that, as a result of negotiating, entering into and performing this Agreement, or for the purposes of discussing future potential business to be governed by this Agreement, each Party (a “receiving Party”) has and will have access to certain Undisclosed Information of the other Party (a “disclosing Party”).
The Parties acknowledge that the CUSTOMER computer network and systems and all documentation and materials related thereto, are the Undisclosed Information of CUSTOMER. All Undisclosed Information shall remain the exclusive property of the disclosing Party. At any time upon request by the disclosing Party, the receiving Party shall promptly surrender to the disclosing Party all Undisclosed Information in receiving Party’s possession or destroy all copies thereof. Receiving Party will not retain any copies of the disclosing Party’s Undisclosed Information. Upon written request, an authorized officer of receiving Party will certify in writing that receiving Party has complied with this request for surrender or destruction. Notwithstanding the foregoing provision, Undisclosed Information stored electronically in receiving Party’s archives may be retained in accordance with receiving Party’s archive policies and procedures, provided that all such Undisclosed Information so retained shall remain subject to the use and disclosure restrictions of this Agreement until such Undisclosed Information is destroyed.
TERM AND TERMINATION: This Agreement shall commence as of the Effective Date and shall be in effect for one year (“Initial Term”). Thereafter, this the Agreement shall terminate at the end of the recorded Support and Maintenance date unless written notice of a desire to extend the term is provided by CUSTOMER to OPSLOGIX at least thirty (30) days prior to the expiration of the then-current term. CUSTOMER may terminate this Agreement for any reason or no reason at all upon written notice, if the Agreement will be extended after the initial term. OPSLOGIX may terminate this Agreement if CUSTOMER is in material breach of any of its terms. Upon such termination, CUSTOMER shall comply with the provisions of subparagraph (b) below. If this Agreement has not been terminated by CUSTOMER's breach, the CUSTOMER agrees that by the end of the Evaluation Period it will either: (a) enter into a license agreement with OPSLOGIX for a perpetual, non¬exclusive right to use the Software; or (b) remove all copies of the Software from its computer system(s) and either return to OPSLOGIX the Software, including any related documentation in CUSTOMER's possession and the media on which the Software was delivered to CUSTOMER or destroy all copies of the Software if obtained electronically. In the event this Agreement is terminated for a breach by OPSLOGIX, CUSTOMER shall be entitled to obtain a pro rata refund of any service fees and costs paid to the OPSLOGIX, for the remaining term of this Agreement. IF EITHER CUSTOMER OR OPSLOGIX FAILS TO COMPLY WITH THE TERMS OF THIS PARAGRAPH, THE NON-BREACHING PARTY MAY COMMENCE LEGAL PROCEEDINGS AGAINST THE BREACHING PARTY FOR BREACH OF THIS AGREEMENT.
RESPONSIBILITY FOR SOFTWARE UPDATES. In order to ensure that the Software functions properly, OPSLOGIX publishes updates to this Software on its web pages. These updates improve the workings of the Software, ensure the Software complies with minor Microsoft updates or removes any bugs known to OpsLogix at the time of issuing of the update.
MAINTENANCE. CUSTOMER is entitled to these updates for a period of one year after purchase of the Software. This period may be renewed for subsequent 1-year periods by paying an annual maintenance fee of the OpsLogix product and/or Software. The CUSTOMER is responsible for proper configuration of the software updating process to provide for the highest possible level of functional reliability.
WARRANTY AND INSPECTION. OPSLOGIX warrants that the OpsLogix product and/or Software delivered will be free of all defects in design, workmanship and material. CUSTOMER shall review all the Software delivered to CUSTOMER by OPSLOGIX. In the event that CUSTOMER finds within 60 days after the delivery of the Software, that any Software services are unacceptable due to non-conformance with the guidelines set forth in this Agreement provided by OPSLOGIX, it shall give prompt notice to OPSLOGIX setting forth the reasons why it finds the Software unacceptable, and the steps which it believes OPSLOGIX should take in order to rectify the issue. OPSLOGIX will then meet with CUSTOMER to determine a mutually agreeable schedule for such additional steps to be taken to bring the Software into conformance and the revised Software services to be delivered. In case CUSTOMER is not satisfied with the correction, OPSLOGIX will refund the license fee.
Representations and Warranties.
a. No Conflicts/Compliance with Law. OPSLOGIX represents and warrants that it is free to enter into this Agreement, to render the Services and to grant the rights herein provided. OPSLOGIX is not subject to any obligations or disabilities that will or might prevent or interfere with keeping and performing all of the agreements, covenants, and conditions to be kept or performed hereunder, and OPSLOGIX has not made nor will make any agreement, commitment, grant or assignment, or will do, or will omit to do, any act or thing that could or might interfere or impair the complete enjoyment of the rights granted, and the Services to be delivered to CUSTOMER hereunder. OPSLOGIX is not in violation of any laws or on any federal or local municipality debarment list. OPSLOGIX will perform the Services and deliver the Software and deliverables to be supplied to CUSTOMER hereunder in a workmanlike manner and in compliance with all applicable laws.
b. Originality. Any and all of OPSLOGIX's materials furnished, suggested and/or delivered to CUSTOMER by OPSLOGIX shall be wholly original with OPSLOGIX except for materials in the public domain or materials duly licensed to OPSLOGIX and for which OPSLOGIX has the right to sublicense or distribute to CUSTOMER without further approvals, and shall not be copied in whole or in part from any other work or materials. Neither OPSLOGIX's material nor their use by CUSTOMER shall infringe upon or violate any right of privacy or publicity of or constitute a libel, slander, or any unfair competition against, or infringe upon or violate any intellectual property rights (including without limitation copyright, patent, trade secret, and/or trademark rights) and/or common law rights or any other rights of any person, firm, corporation or other entity.
TRADEMARKS AND LICENSES. Without the express written permission of CUSTOMER, OPSLOGIX shall not use trademarks, trade names, service marks, insignias or logos owned or used by CUSTOMER (collectively, CUSTOMER “Marks”). OPSLOGIX, its affiliates and agents, if any, shall have no interest in or right to the use of CUSTOMER Marks including marketing or publicity activities, except for any limited non-exclusive right of usage which CUSTOMER may grant in writing pursuant to this Agreement.
OWNERSHIP. OPSLOGIX agrees that CUSTOMER has and shall retain all right, title and interest in and to all information, data and materials which are provided to OPSLOGIX by CUSTOMER or on behalf of CUSTOMER pursuant to this Agreement (CUSTOMER "Materials"). Upon termination of this Agreement or at CUSTOMER's request, OPSLOGIX shall immediately cease its use of the CUSTOMER Materials and shall return all CUSTOMER Materials, and all copies thereof, to CUSTOMER, or destroy such materials and certify in writing to CUSTOMER that such destruction has taken place.
SCHEDULE FOR PERFORMANCE. The schedule for performance of all of OPSLOGIX’s Software Services under a Purchase Order shall be set forth in such Purchase Order. The Parties acknowledge and agree that time is of the essence under this Agreement and failure of OPSLOGIX to meet the deadlines set forth in a Purchase Order shall constitute a material breach of this Agreement. If OPSLOGIX is unable to meet any required deadline, OPSLOGIX shall notify CUSTOMER via e-mail within twenty-four (24) hours of receipt of Purchase Order. CUSTOMER shall have the right, in its sole and absolute discretion, to determine a revised schedule or cancel said Purchase Order without penalty.
FEES AND COSTS. OPSLOGIX guarantees that after the Initial Term price escalation will not exceed the yearly percentage of inflation according to the Harmonized Index of Consumer Prices (HICP) as set by the European Central Bank with a maximum of 2.5 % per year thereafter, unless mutually agreed between the Parties. CUSTOMER shall pay no additional cost or fees under this Agreement unless specifically authorized in writing in advance from an authorized officer of CUSTOMER.
CHANGES/AMENDMENTS. No changes in the scope of this Agreement or fees shall be effective unless approved in writing by CUSTOMER and OPSLOGIX in advance. Such changes shall be incorporated herein by reference. OPSLOGIX will immediately inform CUSTOMER Strategic Sourcing and Procurement of any additions or deletions requested by any CUSTOMER business.
BILLING AND PAYMENT. Invoices submitted to CUSTOMER require a Purchase Order number. CUSTOMER shall pay all correct and properly documented invoices within thirty (30) days from receipt of invoice. CUSTOMER will have no obligation to pay any amounts that OPSLOGIX fails to invoice to CUSTOMER within one (1) years following the end of the monthly billing cycle in which such amounts first became due.

Billing Instructions: Refer to Invoice instructions

Email: billing@opslogix.com
PERSONNEL. OPSLOGIX agrees to provide all necessary personnel, employees, agents, subcontractors and any other person or entity working on behalf of OPSLOGIX (the "Personnel") to provide Services acceptable to CUSTOMER and to permit timely completion of all work required hereunder. The Parties affirmatively state that they are equal opportunity employers and recognize the commitment of the other in this area. Both Parties to this Agreement shall take reasonable and necessary steps to comply in all material respects with all applicable laws, orders, regulations and executive orders as administered by federal, state and local governments to the extent that each has responsibility for such compliance. Intentional failure to abide by this paragraph will be treated as a breach of the terms of this Agreement. For any Personnel that shall have access to CUSTOMER's premises, Confidential Information, or systems, OPSLOGIX shall conduct or have conducted background checks on such Personnel including but not limited to: (a) verification of identity, citizenship and work certification; (b) searches for any criminal convictions, which convictions will result in that Personnel not being provided access to CUSTOMER premises, Confidential Information, or systems; and (c) verification of prior two (2) employers and secondary educational history all to the extent not otherwise restricted by law. OPSLOGIX agrees to provide certification relating to such background checks to CUSTOMER or an affiliate, as requested and as permitted by law, that such background checks were completed and the restrictions herein upheld. OPSLOGIX shall not permit any Personnel to have access to the premises, Confidential Information, or systems of CUSTOMER if such Personnel has not been the subject of or has not cleared any aspect of OPSLOGIX's background check.
INDEMNIFICATION. OPSLOGIX shall indemnify, defend and hold harmless the CUSTOMER against any and all claims, damages, losses, costs and expenses (including reasonable legal expenses) suffered or incurred by CUSTOMER arising out of a third party claim in respect of any actual or alleged infringement of a third party’s intellectual property rights arising out of CUSTOMER’S use of the Software in accordance with the terms of this Agreement.

Indemnification Procedure. CUSTOMER’S right to indemnification under this Agreement is conditioned upon the following: (i) prompt written notice to OPSLOGIX of any claim, action or demand for which indemnity is sought; (ii) control of the investigation, preparation, defense and settlement thereof by OPSLOGIX; and (iii) such reasonable cooperation by CUSTOMER at OPSLOGIX’S reasonable request and expense, the defense of the claim.
ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assignees. Either Party may not assign its rights or obligations under this Agreement without the other Party’s prior written consent, except that CUSTOMER may assign to a wholly owned affiliate without consent.
Divestiture. If CUSTOMER divests or spins-off an affiliate, division, department or other business ("Divested Business"), then CUSTOMER, and the Divested Business (es), may use the Software under the Agreement for a six (6) month transition term, so long as the Divested Business’ use does not materially compromise the use of the Software, and the Divested Business complies with the provisions of this Agreement. If CUSTOMER so requests, OPSLOGIX shall promptly and in good faith enter into a new agreement with the Divested Business with the same terms of this Agreement.
FORCE MAJEURE. Neither Party shall be liable to the other for any delay or inability to perform its obligations under this Agreement or otherwise if such delay or inability arises from any act of God, fire, natural disaster, act of government, or any other cause beyond the reasonable control of such Party which could not be avoided by the exercise of due care. Force Majeure shall not include computer viruses and computer related problems. In the event of such a delay or inability to perform, the time of performance shall be extended for a period of time equal to the length of the delay or inability to perform, provided that if either Party is unable as a result of a force majeure to perform its obligations for a period longer than thirty (30) days, the other Party shall have the right to terminate the Agreement.
AGREEMENT NOT EXCLUSIVE. Nothing contained in this Agreement shall be construed as conferring or granting an exclusive right or obligation upon either Party to purchase or sell Services or the Software.
ENTIRE AGREEMENT. This Agreement together with any extensions or renewals hereof, constitute the Parties’ entire agreement with respect to the subject matter hereof and supersedes all prior statements or agreements, both written and oral. This Agreement may be amended only in writing signed by the Parties.
SEVERABILITY. If any court of competent jurisdiction finds any provision of this Agreement to be unenforceable or invalid, then such provisions shall be ineffective to the extent of the court’s finding without affecting the enforceability or validity of the remaining provisions of this Agreement.
SURVIVAL. The terms of Sections 3, 4, 5, 8, 9, 10, 11, 16, 17, 19, 23, 24, 25, 26, 27, 29, 30 and other sections, which by their nature are intended to extend beyond termination, shall survive termination of this Agreement for any reason.
INJUNCTIVE RELIEF. A breach of any of the commitments contained in this Agreement may result in irreparable and continuing damage to either Party for which there may be no adequate remedy at law, and either Party is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
NOTICES. Whenever notice is to be given by any Party to the other Party under this Agreement, such notice shall be made by any one of the following methods: personally; by overnight courier service from which proof of delivery can be obtained, via next business day delivery, delivery charges prepaid; or by registered or certified mail, return-receipt requested. Notices shall be deemed received (a) if personally delivered or via overnight courier, upon date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m., or otherwise on the business day following delivery to the Party to whom the notice is addressed; or (b) if mailed, two (2) business days after deposit in the U.S. mail. Any Party may change its address and other notice information by giving the other Party written notice of such change in accordance with this Section. All notices shall be sent to the address defined below:

Opslogix BV
IJburglaan 630H
1087 CE Amsterdam
Netherlands
RIGHT TO AUDIT AND COMPLIANCE. For the term of this Agreement and for one (1) year after termination, upon five (5) business days advance written notice to OPSLOGIX, CUSTOMER will have the right to audit all records that pertain to work performed by OPSLOGIX for CUSTOMER, which includes compliance with this Agreement. OPSLOGIX shall provide CUSTOMER reasonable access to review and audit all such records, including without limitation, books, records or sales, transactions, shipments, invoices, copies of licenses, permits, approvals or any document issued by any governmental entity or agency to OPSLOGIX or its subcontractors, which are applicable to the Services and Software provided, and credits associated with this Agreement. If any such review, or audit discloses overcharges, OPSLOGIX shall within thirty (30) days of the completion of such review or audit, remit to CUSTOMER the amount overcharged. If the overcharges amount to more than ten thousand pounds sterling (£ 10,000), OPSLOGIX shall also pay the reasonable cost of such audit within thirty (30) days of the completion of such review or audit. OPSLOGIX’s books and records shall be maintained in accordance with generally accepted accounting principles consistently applied. OPSLOGIX shall, upon request from CUSTOMER, provide a current SSAE 16 SOC1 or equivalent audit report and, as applicable and requested, provide a summary report reflecting the results of the most recently completed network and/or application security vulnerability assessment. Notwithstanding anything in this Agreement to the contrary, the rights of CUSTOMER contained in this contract shall survive the expiration, or earlier termination, of this Agreement. Further, all appropriate records and reports pertaining to work for CUSTOMER by OPSLOGIX under this Agreement shall be maintained by OPSLOGIX for a period of at least two (2) years following the Agreement termination or expiration. Upon written request by CUSTOMER, OPSLOGIX agrees to provide, to the best of its ability, documentation of all software purchased and owned by CUSTOMER (including all subsidiaries, divisions, affiliates, etc.). In addition, certain financial institution clients and regulators with oversight of CUSTOMER and as related to Services provided to certain clients, require the right to audit OPSLOGIX either directly or through CUSTOMER and OPSLOGIX consents to such third party-initiated audits.
GOVERNING LAW. This Agreement shall be governed by the laws of the Netherlands

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