The following "User License Agreement" ("Agreement") governs your use of the software and services provided by Otto Optical Systems Inc. (and its subsidiaries), also known as Otto Optics. This is a legal agreement between you ("Subscriber") and Otto Optics ("Provider") and incorporates the Privacy Policy and the attached Exhibits. By registering your use of the Service, you are accepting to be bound to the terms of this Agreement. Provider and Subscriber may be referred to herein collectively as the "Parties" or individually as a "Party."
1. Definitions
Capitalized terms used in this Agreement have the meanings given to them where defined, including: Aggregated Statistics (anonymized data related to Subscriber's use of the Services); Authorized User (Subscriber's employees, consultants, contractors, and agents authorized to access the Services); Confidential Information (proprietary information disclosed by either party, as set out in Section 6); Subscriber Data (content submitted through the Services by or on behalf of Subscriber); Documentation (Provider's user manuals and guides); Personal Health Information; Provider IP; Services (the software-as-a-service offering described in Exhibit A); and Term, among others.
2. Access and use
(a) Provision of Access. Subject to Subscriber's payment of Fees and compliance with this Agreement, Provider grants Subscriber a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users for Subscriber's internal use.
(b) Documentation License. Provider grants Subscriber a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Term for Subscriber's internal business purposes.
(c) Use Restrictions. Subscriber shall not, and shall not permit any Authorized User to: copy, modify, or create derivative works of the Services or Documentation; rent, lease, lend, sell, sublicense, or otherwise make available the Services; reverse engineer or attempt to derive the source code; remove proprietary notices; or use the Services in any manner that infringes any third-party right or violates applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Subscriber in this Agreement.
(e) Suspension. Provider may temporarily suspend access to the Services if it reasonably determines there is a security threat, fraudulent or illegal use, insolvency, or where required by law, or if a vendor suspends Provider's access to required third-party services. Provider will use commercially reasonable efforts to provide notice and restore access promptly.
(f) Aggregated Statistics. Provider may monitor Subscriber's use of the Services and collect and compile Aggregated Statistics, all rights to which belong solely to Provider, provided such statistics do not identify Subscriber or its Confidential Information.
3. Subscriber responsibilities
Subscriber is responsible and liable for all uses of the Services and Documentation resulting from access provided by Subscriber, including all acts and omissions of Authorized Users. Provider may from time to time make Third-Party Products available to Subscriber, which are subject to their own terms and conditions.
4. Service levels and support
Subject to the terms of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit B.
5. Fees and payment
(a) Fees. Subscriber shall pay Provider the fees set forth in Exhibit A without off-set or deduction. If Subscriber fails to pay when due, Provider may charge interest (the lesser of 6% per annum or the maximum permitted by law), recover collection costs, and suspend access after ten (10) days.
(b) Taxes. All Fees are exclusive of taxes; Subscriber is responsible for all applicable HST, PST, GST, and similar taxes, other than taxes on Provider's income.
(c) Auditing Rights. Subscriber agrees to maintain complete and accurate records during the Term and for two (2) years thereafter, and Provider may periodically inspect and audit those records.
(d) Guarantee. If Subscriber provides written notification of its intent to close its account within ninety (90) days of account creation, Provider agrees to refund any subscription fees paid up to that date.
6. Confidential Information
From time to time either Party may disclose Confidential Information to the other. The receiving Party shall not disclose it except to employees who need to know it to exercise rights or perform obligations under this Agreement. Confidential Information does not include information that is in the public domain, already known, rightfully obtained from a third party, or independently developed. Obligations of non-disclosure are effective as of the Effective Date and expire ten (10) years from disclosure, except trade secrets, which remain protected for as long as they qualify under applicable law.
7. Intellectual property ownership and feedback
(a) Provider IP. As between the Parties, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Subscriber Data. As between the Parties, Subscriber owns all right, title, and interest in and to the Subscriber Data, and grants Provider a license to use it as necessary to provide the Services and (in anonymized, aggregated form) for Aggregated Statistics.
(c) Feedback. Provider is free to use any Feedback Subscriber provides without attribution or compensation.
8. Limited warranty and warranty disclaimer
Provider warrants that the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Except for that limited warranty, the Provider IP is provided "as is," and Provider disclaims all other warranties and conditions, whether express, implied, statutory, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
9. Indemnification
Provider shall indemnify Subscriber against third-party claims that the Services infringe Canadian intellectual property rights, subject to the conditions set out in this Section. Subscriber shall indemnify Provider against claims arising from the Subscriber Data or from Subscriber's negligence, willful misconduct, or unauthorized use of the Services. This Section sets forth the Parties' sole remedies for infringement claims; in no event will Provider's liability under this Section exceed $1,000 CAD.
10. Limitations of liability
In no event will Provider be liable for any consequential, incidental, indirect, exemplary, special, aggravated, or punitive damages; increased costs, diminution in value, or lost business, revenues, or profits; loss of goodwill or reputation; loss or breach of data; or cost of replacement goods or services. Provider's aggregate liability arising out of or related to this Agreement will not exceed three times the total amounts paid and accrued in the two-year period preceding the event giving rise to the claim, or $1,000, whichever is less.
11. Term and termination
(a) Term. The initial term begins upon the commencement of services and continues until terminated. This Agreement automatically renews for additional terms unless either Party gives written notice of non-renewal at least thirty (30) days prior to expiration.
(b) Termination. Provider may terminate on notice if Subscriber fails to pay within ten (10) days of notice or breaches Sections 2(c) or 6. Either Party may terminate for an uncured material breach (thirty days' notice) or immediately upon insolvency or bankruptcy of the other Party.
(c) Effect of Termination. Upon termination, Subscriber shall discontinue use of the Provider IP and delete or return all copies. No termination affects Subscriber's obligation to pay Fees due before termination or entitles Subscriber to any refund.
(d) Survival. Sections 1, 5, 6, 7, 8(b), 9, 10, and 12, and this Section 11(d), survive termination or expiration.
12. Miscellaneous
This Agreement constitutes the entire agreement of the Parties and supersedes all prior understandings. It is governed by the laws of the Province of Saskatchewan and the federal laws of Canada applicable therein, with exclusive jurisdiction in the courts of Saskatchewan. The section includes standard provisions on order of precedence, notices, force majeure, amendments and modifications, waiver, severability, assignment, equitable relief, and counterparts. Provider may modify these Terms at any time; revisions will be notified by email, and continued use of the Service after changes constitutes acceptance.
Exhibit A — Description of Services
Otto Optics System is a software as a service that facilitates product sales by providing retailers with client relationship management software that allows them to offer a streamlined purchasing and repurchasing experience for their customers. Otto is fully integrated and fully automated, offering robust functionality with minimal user input, including:
Drive revenue
- Comprehensive, customizable webstore specialized for the optical industry, white-labelled and embedded directly into your website
- Sell contact lenses, vitamins, eye drops and more online
- Timely automated refill reminders and 2-click reorders for returning customers
- Auto-refill subscription plans and detailed contact lens price quotes
- You set your own pricing; integrated vendor rebates; allow patients to use insurance
- A robust catalogue of pre-built products, custom products, and secure payment processing
Save staff time
- Integrated contact lens ordering from distributors or direct from manufacturers, centralized to one interface
- Fully automated contact lens rebate management and refill fulfilment
- Order contact lens trials and multi-supplier stock orders
- One-click order pickup notifications
Other features and services
- Comprehensive data insights dashboard; reports to make accounting easy; direct deposit into your bank account
- Unlimited, free customer support from a human (live chat, phone, email), plus video tutorials and how-to guides
- Complimentary pricing/catalogue setup and data migration; competitive pricing guide; marketing package
- Unlimited user accounts, patient profiles, and orders; multi-location compatibility
Exhibit B — Service levels and support
Otto provides Service Level Commitments and Support Services during the Subscription Term. Scheduled Available Time is 24 hours a day, 7 days a week. Otto will use commercially reasonable efforts to provide at least 24 hours' prior notice before any Scheduled Downtime. If the Service experiences an Uptime Percentage of less than 99.9% in any two or more consecutive calendar months, Subscriber is entitled to a pro-rated SLC Credit, subject to the request and eligibility requirements set out in this Exhibit. Otto provides email and/or phone support, excluding Otto corporate holidays, weekends, and national Canadian holidays except where noted. Service Level Commitments do not extend to errors caused by modifications made by anyone other than Otto, third-party hardware or software, improper operation, or events beyond Otto's reasonable control.