TERMS AND CONDITIONS OF SERVICE

Welcome to Optumi!

These terms and conditions are a legal agreement (this “Agreement”) between you (together with the business entity, if any, that you represent, “You” or “Your” or “Client”) and Optumi Inc., with offices in Chelmsford, Massachusetts (“Optumi” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use the services and features available on Optumi’s on-line platform (the “Optumi Platform”) which enables clients of Optumi to access remote computing resources on demand, as-needed and at variable rates depending on clients’ subscription tier.  The Optumi Platform is made available through domains, browser plug-ins, extensions, IP addresses, portals or other channels as Optumi makes available to You from time to time (the “Website(s)”).  The date You first agree to or accept this Agreement, or that You otherwise first access and use the Optumi Platform, is referred to herein as the “Effective Date.”  Your use of the Optumi Platform is also subject to our Privacy Policy as may be made available through our Website, as such Privacy Policy may change from time to time.

BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE SERVICES, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE OPTUMI PLATFORM AND/OR THE SERVICES FROM YOU ARE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS ALSO SUBJECT TO THE TERMS AND CONDITIONS OF USE AND PRIVACY POLICIES, IF ANY, OF THE WEBSITE(S) THROUGH WHICH YOU ACCESS THE SERVICES, AS SUCH TERMS AND CONDITIONS OF USE AND PRIVACY POLICIES MAY CHANGE FROM TIME TO TIME.

FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND OPTUMI ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 12 “AGREEMENT TO ARBITRATE”).

AGREEMENT

1.            Definitions.

1.1       “Activation Time” means each date and time on which Client commences using the Services.

1.2       “Affiliate” means any corporation or entity of either party, which is owned or controlled by or under common control with a party.  For purposes of this definition, “control” shall mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.

1.3       “Cessation Time” means each date and time on which Client ceases using the Services.

1.4        “Client Content” means content uploaded or provided to the Optumi Platform by the Client in connection with Client’s use of the Services.

1.5       “Client System” means Client’s website(s), systems, servers and other equipment and software used in the conduct of such Client’s personal or business activities.

1.6       “Documentation” means any proprietary user documentation made available to Client by Optumi, including any documentation available on the Website or otherwise, as amended or updated by Optumi from time to time in its discretion. 

1.7       “Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

1.8       “Order” means an order for the purchase by Client of Services provided through the Optumi Platform, as mutually agreed by the parties through the Optumi Platform from time to time.

1.9       “PII” means information that can be used to identify, contact, locate, distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.  For the sake of clarity, PII shall exclude prohibited information as outlined in Section 8.1(b).

1.10       “Services” means the provision and support of the Optumi Platform as set forth in an Order from time to time.

1.11       “Session” means each instance of Client’s or its Users’ use of the Services.

1.12       “Session Time” means the period between the Activation Time and the Cessation Time, in hours, minutes and seconds.

1.13        “Subscription Term” means the subscription period set forth in an Order for the relevant Services purchased pursuant to such Order, during which Client may use the Services for Session Time.

1.14       “Third Party Software” means certain software included as part of the Optumi Platform, which is licensed from third parties, which may include open source software subject to the provisions of the applicable open source license(s).

1.15       “Users” means employees of Client who are authorized by Client to use the Optumi Platform and the Services and who have been supplied user identifications and passwords by Client pursuant to Section 3.1 (Passwords).

2.            Optumi PLATFORM.

2.1       Subscription.  Subject to the terms and conditions of this Agreement, Client may purchase access to Services for a defined Subscription Term pursuant to Orders and may commence specific Sessions for use of the Services from time to time during those Subscription Terms. Each Order is deemed incorporated into this Agreement by reference.

2.2       Access and Use.  Subject to the terms and conditions of this Agreement, Optumi hereby grants to Client, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Services via the Optumi Platform in accordance with the Documentation, solely for Client’s internal business or personal purposes and not for the benefit of any other person or entity.  Client agrees that its subscriptions and use under this Agreement are neither contingent on the delivery of any future functionality or features of the Optumi Platform nor dependent on any oral or written public comments made by Optumi regarding future functionality or features.  Further, if Optumi provides You with any API, browser plug-in or software outside the Optumi Platform (“Ancillary Software”), Optumi hereby grants You a limited, non-exclusive, non-transferable right to use that Ancillary Software solely in connection with Your use of the Optumi Platform.  For the avoidance of doubt, Client and its Users will not have the right to access or use the Optumi Platform except for the access and use of Services through the Optumi Platform as provided in this Section 2.2.

2.3       Restrictions.  Client shall not, directly or indirectly, and Client shall not permit any User or third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Optumi Platform; (ii) modify, translate, or create derivative works based on any element of the Optumi Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services or Optumi Platform; (iv) use the Services or Optumi Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Client and its Users; (v) remove any proprietary notices from the Documentation; (vi) publish or disclose to third parties any evaluation of the Services or Optumi Platform without Optumi’s prior written consent; (vii) use the Services or Optumi Platform for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Services or Optumi Platform; or (ix) attempt to gain unauthorized access to the Services or Optumi Platform.

2.4       Hardware and Software.  Client is responsible for (i)  obtaining, deploying and maintaining the Client System, and all computer hardware, software, modems, routers and other communications equipment necessary for Client and its Users to access and use the Services and Optumi Platform via the Internet; (ii) contracting with third party ISP, telecommunications and other service providers to access and use the Services and Optumi Platform via the Internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in this Agreement, Optumi shall not be responsible for supplying any hardware, software or other equipment to Client under this Agreement.

2.5       Changes to the Optumi Platform.  You agree and acknowledge that Optumi may update and otherwise change the Optumi Platform from time to time in its sole discretion from time to time during or after Your Subscription Term. 

3.            PASSWORDS; SECURITY.

3.1       Passwords.  Optumi will issue to Client and/or authorize a Client account manager to create and issue to each User, a user login and password for access and use of the Services and the Optumi Platform.  Client and its Users are responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued.  Client is solely responsible for any and all access and use of the Services or Optumi Platform that occurs under Client’s account.  Client shall restrict its Users from sharing passwords.  Client agrees to immediately notify Optumi of any unauthorized use of Client’s or any User’s account and/or login and password, or any other breach of security known to Client.  Optumi shall have no liability for any loss or damage arising from Client’s failure to comply with the terms set forth in this Section.

3.2       Security.  Optumi will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Client Content stored by Optumi on the Optumi Platform in connection with Client or its Users’ operation of the Optumi Platform.  Optumi will exercise reasonable efforts to deploy corrections within the Optumi Platform for security breaches made known to Optumi.

3.3       No Circumvention of Security.  Neither Client nor any User may circumvent or otherwise interfere with any user authentication or security of the Optumi Platform.  Client will immediately notify Optumi of any breach, or attempted breach, of security known to Client.

3.4       No Guaranty of Security.  Client acknowledges that, notwithstanding the security precautions deployed by Optumi, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Optumi Platform and Client Content.  Optumi cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.

4.            FEES AND PAYMENT.

4.1       Subscription and Variable Fees.  Client shall pay to Optumi the subscription fees and charges for Session Time for the applicable Subscription Term as set forth in the relevant Order (the “Subscription Fees”). Unless otherwise expressly set forth in the relevant Order, Client may be billed in advance, on-demand or retroactively as determined by Optumi in its sole descretion, for the applicable Subscription Fees for such Services, such that Client will pay for Subscription Terms or utilize a credit for Session Time-based fees. Except as otherwise specified in an Order Form, subscriptions and Subscription Fees are non-cancelable during the Subscription Term, and the subscriptions purchased cannot be decreased during the relevant Subscription Term on the Order.  Optumi may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Client’s then-current Subscription Term will not change until the expiration of such then-current Subscription Term.

4.2       Advance Fees; Payment Processors.  Client may be required to pay all Subscription Fees in advance using payment processors chosen by Optumi from time to time.  Optumi shall not be responsible for any acts or omissions of such payment processors. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction.

4.3       Taxes.  Client shall pay all applicable sales (unless an exemption certificate is furnished by Client to Optumi), use and value-added taxes (except for taxes imposed on Optumi’s net income) with respect to this Agreement or furnish Optumi with evidence acceptable to the taxing authority to sustain an exemption therefrom.  All payments under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires Client to withhold.

4.3       Promotional Credit.  The following conditions apply to any promotional credit (“Promotional Credit”) You receive from Optumi.

(a)    Promotional Credit may be used only for fees and charges for the specific services designated by us (collectively, “Eligible Services”).  You will be billed for all fees and charges for use of any Eligible Services in excess of the amount of available Promotional Credit.

(b)    Promotional Credit You receive is personal to You and is offered only as a promotional item.  You may not sell, license, rent, or otherwise transfer Promotional Credit.  Optumi Promotional Credit has no intrinsic value, is not redeemable for cash, has no cash value, and serves merely as a means to recognize and provide an incentive to use our Platform.  Promotional Credit may not be purchased for cash and we do not sell Promotional Credit.  Promotional Credit is nonrefundable.

(c)    Promotional Credit is void in the event of fraud, misuse, or violation of any terms of this agreement.  Promotional Credit may not be used (and You are ineligible to receive any Promotional Credit) if Your use or receipt of Promotional Credit is inconsistent in any way with applicable laws.

(d)    Promotional Credit is valid for a limited time only and expires on the date indicated when You receive the applicable Promotional Credit or any such other date designated by us.  Failure to use Promotional Credit before such expiration date will result in the forfeiture of Promotional Credit.  We reserve the right to cancel Promotional Credit at any time.  No refunds will be granted for any expired or canceled Promotional Credit.

(e)    You may not issue any press release or make any other public disclosure regarding Promotional Credit to misrepresent or embellish the relationship between us and You.  For example, You agree not to imply that we support, sponsor, or endorse You unless You have our prior written permission to do so.

5.            REPRESENTATIONS AND WARRANTIES.

5.1       Optumi Limited Warranty.

(a)       Optumi Platform Warranty. Optumi warrants to Client that for a period of thirty (30) days following the applicable Session, the Services shall, under normal use and service, substantially conform to, and perform in all material respects, the functions described in the applicable Documentation.  If any such Services fail to comply with the foregoing warranty, Client shall provide written notice to Optumi prior to the expiration of the warranty period set forth above and such notice will describe in reasonable detail the nature of the non-conformity.  In such event, Optumi shall use reasonable efforts to repair or rectify such non-conformity.  If Optumi is unable to repair or rectify such non-conformity, then Optumi may terminate this Agreement (including without limitation the licenses granted in this Agreement) with respect to the non-conforming Services and in such event, Optumi will refund to Client on a pro-rata basis as applicable the portion of Subscription Fees paid to Optumi prior to termination applicable to the access and use of such non-conforming Services after the termination date, excluding any Session Time-based fees which shall not be refunded.  THE REMEDY SET FORTH IN THIS SECTION SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND OPTUMI’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.

(b)       Exclusions.  The warranty set forth in this Section 5.1 (Optumi Limited Warranty) does not cover defects or non-conformities arising from (i) misuse of the Optumi Platform or the Documentation, (ii) any modifications to the Optumi Platform made by any person or entity other than Optumi that is not previously approved by Optumi, (iii) any use of the Services or Optumi Platform by Client or its Users beyond the scope of the express rights licenses granted in this Agreement, (iv) any use of the Optumi Platform in combination with other software, hardware or data, or (v) Optumi’s compliance with Client’s request for changes to the Optumi Platform or with Client’s designs, specifications or instructions. 

5.2       Client Warranties.

(a)       Client System Warranty. Client represents and warrants that Client has the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to provide the Client Content to the Optumi Platform for the purposes of using the Services.

(b)       Other Client Representations and Warranties.  Client represents, warrants and covenants that: (a) Client has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) Client’s execution of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by Client to any third party to keep any information or materials in confidence or in trust.

5.3       Disclaimer.  THE WARRANTIES SET FORTH IN THIS SECTION 5 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE OPTUMI PLATFORM AND SERVICES ARE PROVIDED ON AN AS-IS BASIS.  CLIENT’S USE OF THE OPTUMI PLATFORM AND SERVICES IS AT ITS OWN RISK.  OPTUMI DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

OPTUMI DOES NOT WARRANT THAT THE SERVICES OR OPTUMI PLATFORM IS OR WILL BE UNINTERRUPTED OR ERROR FREE.  THE SERVICES ARE DEPENDENT UPON THE AVAILABILITY OF THIRD PARTY HOSTING PROVIDER SYSTEMS WHICH OPTUMI DOES NOT CONTROL AND FOR WHICH OPTUMI IS NOT RESPONSIBLE.  CLIENT ACKNOWLEDGES AND AGREES THAT THE OPTUMI PLATFORM (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS.  ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE OPTUMI PLATFORM OR SERVICES.  ACCORDINGLY, CLIENT SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

6.            INDEMNIFICATION.

6.1       Optumi Indemnity.  Optumi shall, subject to the terms and conditions set forth in this Agreement, (i) defend Client from and against any and all third party claims, actions, suits, demands or proceeding brought against Client (a “Claim”) alleging that Client’s use of the Optumi Platform and Services in accordance with the terms of this Agreement infringes any United States copyright or United States patent issued as of the Effective Date, and (ii) indemnify and hold harmless Client against any damages awarded to the third party bringing the Claim or any settlement amount approved by Optumi in writing and paid to the third party bringing the Claim in order to settle the Claim.  Optumi’s obligations under this Section are conditioned upon (i) Optumi being promptly notified in writing of such Claim, (ii) Optumi having the exclusive right to control the defense and/or settlement of the Claim, and (iii) Client providing all reasonable assistance (at Optumi’s request and expense) in the defense of the Claim.  In no event shall Client settle any Claim without Optumi’s prior written approval.  Client may, at its own expense, engage separate counsel to advise Client regarding a Claim and to participate in the defense of the Claim, subject to Optumi’s right to control the defense and settlement.

(a)       Mitigation.  In the event of any such third party Claim or threat thereof, Optumi, at its sole option and expense, may (i) procure for Client the right to continue to use the allegedly infringing Services or Optumi Platform, or (ii) replace or modify the Optumi Platform with functionally equivalent software and/or Services.  If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of Optumi, Optumi may terminate this Agreement with respect to the allegedly infringing Services or Optumi Platform, and the license thereto granted hereunder, upon fifteen (15) days written notice to Client.  In the event of such termination, Optumi shall refund to Client any portion of Subscription Fees paid to Optumi by Client for use of the allegedly infringing Services or Optumi Platform following the date of such termination.

(b)       Exclusions.  Notwithstanding anything to the contrary in this Agreement, Optumi shall have no obligations to Client pursuant to this Section 6.1 (Optumi Indemnity) with respect to any infringement or alleged infringement resulting or arising from (1) any modifications to the Optumi Platform made by any person or entity other than Optumi that is not previously approved by Optumi, (2) any use of the Optumi Platform or Services by Client or its Users beyond the scope of the express rights and licenses granted in this Agreement, (3) any use of the Services or Optumi Platform in combination with other service, software, hardware or data, or (4) Optumi’s compliance with Client’s request for changes to the Optumi Platform or with Client’s designs, specifications or instructions.

(c)       Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF OPTUMI WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR OPTUMI PLATFORM OR OTHERWISE, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF OPTUMI WITH RESPECT THERETO.

6.2       Client Indemnity.  Client shall indemnify and hold harmless, and at Optumi’s request defend, Optumi and its Affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) any third party claim or threat thereof that the Client Content or Client System (and the exercise of the rights by Optumi granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Client’s use or alleged use of the Services or Optumi Platform (other than claims arising from Optumi’s breach of this Agreement or from claims subject to Section 9.1); (c) any breach or alleged breach by Client of any of its covenants, representations or warranties set forth in this Agreement.  Optumi shall notify Client promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve Client of its obligations hereunder except to the extent that Client was actually and materially prejudiced by such failure.  Client may not settle any claim for which indemnification is sought under this Section without the prior written approval of Optumi, which approval shall not be unreasonably withheld or delayed.

7.            Confidentiality.

7.1       Confidential Information.  “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (iii) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (iv) the terms of this Agreement and any Order. Confidential Information of Optumi shall include the Optumi Platform and Services. Confidential Information also includes all summaries and abstracts of Confidential Information.

7.2       Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party.  The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it.  The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of this Agreement.  Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

7.3       Exceptions to Confidential Information.  The obligations set forth in Section 7.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which:  (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.  Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.  Notwithstanding the foregoing, Client authorizes Optumi to list Client’s name and logo in a list of customers on Optumi’s website and marketing materials.

8.            CLIENT CONTENT.

8.1       Client Content. Client, not Optumi, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and the parties’ respective rights to use all Client Content under this Agreement.  Client shall be responsible for obtaining any consents and other rights necessary to collect, submit, use and process Client Content on the Optumi Platform in connection with the Services.

(a)       Personally Identifiable Information.  Client has control over whether any PII is collected and processed by the Optumi Platform or its Client Systems. Client represents and warrants that (i) it will provide all required notice to and obtain all required consent from each individual regarding the collection, disclosure, analysis and use of Client Content, including any PII, and (ii) that the collection, disclosure, analysis and use of Client Content, as contemplated under this Agreement, complies with all applicable laws, rules and regulations.

(b)       Compliance with Laws.  Client represents and warrants that it will ensure that the provision and use of information via the Services complies with all applicable laws, rules and regulations and this Agreement.

8.2       Usage Data. Notwithstanding anything else in the Agreement or otherwise, Optumi may monitor Client’s use of the Services and Optumi Platform and use data and information related to Client Content and Client’s use of the Services in an aggregate or de-identified manner, including to compile statistical and performance information related to the provision and operation of the Optumi Platform and Services.  Client agrees that Optumi may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Client or its Confidential Information.  Optumi retains all Intellectual Property Rights in such data and information.

9.            PROPRIETARY RIGHTS.

9.1       Ownership. Client acknowledges that the Optumi Platform and the Services, and all Intellectual Property Rights therein, are the sole and exclusive property of Optumi and its licensors. Optumi acknowledges that the Client System, and all Intellectual Property Rights therein, is the sole and exclusive property of Client and its licensors. Each party retains all other rights not expressly granted in this Agreement.

9.2       Optumi Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Optumi, whether solely or jointly, including without limitation, in connection with Optumi’s performance of the Services hereunder (“Optumi Developments”), including all Intellectual Property Rights therein, shall be the sole and exclusive property of Optumi.

9.3       License to Client Content and Client Content.  Client grants to Optumi a royalty-free, nonexclusive, irrevocable, limited right and license to use the Client Content (a) in order to provide the Services; (b) to analyze and improve Optumi and the Services; and/or (c) to compile and use aggregate or de-identified data, statistics, measurements or other metrics relating to use of the Services for its own purposes.  Aggregate or de-identified data means data that does not identify any Client or individual.

9.4       Disclosure of Client Content.  Optumi shall not disclose Client Content to third parties, except: (i) as necessary to provide the Services to You; (ii) to our service providers who are not permitted to use such data except on behalf of Optumi, (iii) as required by law or to comply with legal process; (iv) to protect and defend the rights or property of Optumi, including as evidence in litigation; (v) to troubleshoot problems with the Services; (vi) to any successor in interest, including as part of a merger, acquisition or transfer of assets, or as part of a bankruptcy proceeding; or (vii) in aggregate or de-identified form.

9.5       Limited Feedback License.  Client hereby grants to Optumi, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Client’s Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Optumi Platform, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Optumi Platform or any other products or services.  Feedback is provided “as is” without warranty of any kind and shall not include any Confidential Information of Client.

10.            Limitation of Liability.

10.1       No Consequential Damages.  OPTUMI AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF OPTUMI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE OPTUMI PLATFORM, SERVICES OR RESULTS THEREOF.  OPTUMI WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

10.2       Limits on Liability.  OPTUMI AND ITS LICENSORS SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY CLIENT TO OPTUMI UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY OPTUMI TO CLIENT IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT.  CLIENT RELEASES OPTUMI AND ITS LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE OPTUMI PLATFORM, SERVICES, AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 10.2.

10.3       Essential Purpose.  Client acknowledges that the terms in this Section 10 (Limitation of Liability) are an essential basis of the bargain described in this Agreement and that, were Optumi to assume any further liability, the fees payable hereunder would out of necessity, be set much higher.  THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

11.            TERM AND TERMINATION.

11.1       Term.  The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Services, unless earlier terminated as provided in this Agreement.

11.2       Termination.  Optumi reserves the right to terminate this Agreement for no reason in its sole discretion at any time; provided that, in the event such termination of Services without cause, Optumi will provide a pro-rata refund to Client of any pre-paid fees for the then-current Subscription Term.  Further, either party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.

11.3       Effects of Termination.  Upon expiration or termination of this Agreement, (i) Client’s use of and access to the Services and Optumi Platform shall cease; (ii) all Order(s) shall terminate; and (iii) all fees and other amounts owed under this Agreement shall be immediately due and payable by Client, including without limitation, all fees incurred under any outstanding Orders up through the date of termination. In addition, within ten (10) days of the effective date of termination each Receiving Party shall (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. Following such 10-day period, Optumi shall have no obligation to maintain or provide any Client Content and may thereafter unless legally prohibited, delete all Client Content in its systems or otherwise in its possession or under its control.

11.4       Survival.  This Section 11.4 and Sections 1 (Definitions), 4 (Fees and Payments), 5 (Representations and Warranties), 6 (Indemnification), 7 (Confidentiality), 8 (Client Content), 9 (Proprietary Rights), 10 (Limitation of Liability), 11.3 (Effects of Termination), 12 (Agreement to Arbitrate) and 13 (Miscellaneous) shall survive any termination or expiration of this Agreement.

12.            AGREEMENT TO ARBITRATE. 

12.1       Arbitration.  You agree that all disputes between You and Optumi (whether or not such dispute involves a third party) arising out of or relating to these Terms of Service, the Website, the Services and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Boston, Massachusetts, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and Optumi hereby expressly waive trial by jury. You and Optumi shall appoint as sole arbitrator a person mutually agreed by You and Optumi or, if You and Optumi cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, Optumi shall be entitled to seek injunctive relief, security or other equitable remedies from the United States District Court for a district in Massachusetts or any other court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms of Use or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

12.2       Waiver of Class Actions.  Any claims brought by You or Optumi must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor Optumi will participate in a class action or class-wide arbitration for any claims covered by these Terms of Service. You hereby waive any and all rights to bring any claims related to these Terms of Service and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.

12.3       Opt Out.  You may opt out of this agreement to arbitrate in this Section 12.  If You do so, neither You nor we can require the other to participate in an arbitration proceeding.  To opt out, You must notify us in writing within thirty (30) days of the date that You first became subject to this arbitration provision.  The opt out notice must state that You do not agree to the Agreement to Arbitrate and must include Your name, address, phone number, Your Login Credentials to which the opt out applies and a clear statement that You want to opt out of this agreement to arbitrate.  You must sign the opt out notice for it to be effective.  This procedure is the only way You can opt out of the Agreement to Arbitrate.  You must use this address to opt out: Optumi, Inc., ATTN: Arbitration Opt-out, PO Box 571, Chelmsford, MA 01824, USA.

12.4       Survival.  This Arbitration section will survive the termination of Your relationship with Optumi.

13.            Miscellaneous.

13.1       Notices.  Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the preamble of this Agreement, or to such other address for either party as may be supplied by notice given in accordance herewith.

13.2       Amendment; Waiver.  This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by Client.  No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

13.3       Severability.  If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

13.4       Governing Law.  This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the Commonwealth of Massachusetts as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Subject in all respects to Section 12 hereof, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the Commonwealth of Massachusetts.

13.5       Attorneys’ Fees.  In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

13.6       Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.

13.7       Assignment.  Neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.

13.8       Relationship of the Parties.  Optumi is an independent contractor to Client. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties.  Neither party has the authority to bind the other or to incur any obligation on its behalf.

13.9       Construction of Agreement.  Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions.  Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.

13.10       Entire Agreement.  This Agreement, including all Order(s) and Exhibits, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

13.11       Export.  The Services and Optumi Platform utilize software and technology that may be subject to United States and foreign export controls. Client acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Client represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Optumi Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Client agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Optumi and its licensors make no representation that the Services are appropriate or available for use in other locations.

[End of Terms and Conditions of Service]