Version 1.0 (Current)
Effective February 28th, 2025

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CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS OPTIMIBI SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”).
BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, “CREATE”; PROCEEDING WITH THE INSTALLATION OF THE OPTIMIBI ENTERPRISE SOFTWARE; OR USING THE SOFTWARE, YOU, AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY ON WHOSE BEHALF YOU INSTALL AND/OR USE THE SOFTWARE (“SUBSCRIBER”), ARE ACKNOWLEDGING YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS.

IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT, AN OPTIMIBI ORDER FORM OR SOW, AND A SUBSCRIBER PURCHASE ORDER, THIS AGREEMENT, THE OPTIMIBI ORDER FORM OR SOW SHALL GOVERN. IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND AN OPTIMIBI ORDER FORM OR SOW, THE ORDER FORM OR SOW SHALL GOVERN.

THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE SUBSCRIPTION START DATE SET ON THE ORDER FORM (“EFFECTIVE DATE”).

1. Scope of Agreement

This Agreement sets forth the terms and conditions under which Subscriber or its Affiliates may purchase from the OPTIMIBI entity listed on an applicable Order Form (“OPTIMIBI”, traded as GraphWay Pty Ltd, a proprietary company registered in Australia with ABN 71622338096) or its Affiliates:

1. Subscription Licenses to use proprietary commercial data analytics and visualization products developed by OPTIMIBI and made available to its subscribers for download through the OPTIMIBI website (the “Site”), including any future updates or upgrades (collectively, the “Software”).
2. Support and Maintenance Services (“Support Services”).
3. Implementation, Training, or Consulting Services performed by OPTIMIBI or its authorized representatives (“Consulting Services”).

Support Services and Consulting Services are referred to collectively as “Services.”

Definitions:

• Affiliate: An entity that directly or indirectly controls, is controlled by, or is under common control with such party.
• Control: Direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Subscriber is liable for its Affiliates’ compliance with this Agreement.

Software and Services ordered for a specific use case (“Project”) will be specified in Order Form(s) and/or Statement(s) of Work (“SOW”).

• Order Form: An ordering document specifying the Software and/or Services to be provided.
• Each Order Form or SOW, once executed by an authorized representative, constitutes a separate agreement subject to this Agreement unless modified in the Order Form or SOW.

2. Grant of Limited License

Subject to compliance with this Agreement and applicable Order Form, OPTIMIBI grants Subscriber a nonexclusive, revocable, non-transferable, non-sublicensable internal license to use the Software on-premises or in the Subscriber’s cloud environment, solely for business purposes per the Documentation.

Key Terms:

• Documentation: OPTIMIBI’s standard installation materials, training materials, specifications, and online help documents, updated from time to time.
• Download & Acceptance: The Software is deemed accepted upon OPTIMIBI making it available for download.
• Intellectual Property: OPTIMIBI or its licensors retain all right, title, and interest in and to the Software, including all patents, copyrights, trademarks, and trade secrets.

All rights not expressly granted are reserved.

Third-Party Open-Source Software:

• Open-source software (“Open-Source Software”) provided with the Software is subject to the applicable third-party license terms, viewable at:
  www.optimibi.com/thirdpartylicenses.
• OPTIMIBI ensures that Open-Source Software, when used as delivered and unmodified, does not require disclosure or licensing of the Subscriber’s proprietary source code.

3. License Restrictions and Usage Limit Compliance

Subscriber may not:

1. Decompile, reverse engineer, or discover source code.
2. Modify, translate, adapt, or create derivative works.
3. Sell, rent, sublicense, or distribute the Software.
4. Use the Software in a service-bureau model.
5. Remove proprietary notices from the Software.
6. Use AGPL, AGPLv3 with Commons Clause, or GPL licensed software in the same Project.

Usage Limits:

• Usage is subject to term, metrics, and quantities set in the Order Form.
• OPTIMIBI may verify compliance during the Subscription term and 12 months thereafter.
• Excessive Use beyond licensed limits may result in additional Upgraded License Fees.
• OPTIMIBI may suspend or terminate access for non-payment of Upgraded License Fees.

4. Fees and Payments

• Payments must be made as per the Order Form or SOW in the specified currency.
• Subscriber is responsible for applicable taxes (excluding OPTIMIBI’s income taxes).
• Late payments are subject to 1.5% interest per month or the highest rate permitted by law.
• Fees are non-refundable and non-cancellable.

Resellers & Payment Processors:

• Subscriber may purchase through an authorized Reseller or Payment Processor.
• Subscriber’s payment relationship with a Reseller/Processor is independent of OPTIMIBI.

5. Confidentiality

Confidential Information includes:

• Software, technical/business information, and non-public details.

Confidentiality does not apply to information that:

• Becomes public without breach.
• Was rightfully known by the receiving party.
• Is independently developed.

The receiving party must use reasonable care to protect Confidential Information and may only disclose if legally required.

6. Warranties and Disclaimer

6.1 Mutual Warranties

Each party warrants that:

1. They have the authority to enter into this Agreement.
2. They will comply with applicable laws.

6.2 OPTIMIBI Warranties

• The Software will materially conform to its Documentation for 90 days.
• Subscriber’s sole remedy for a breach is fixing the Software or a refund.

6.3 Disclaimer

• AS-IS BASIS: The Software and Services are provided "as-is".
• No Warranties: OPTIMIBI disclaims all implied warranties.
• No Guarantee of Uninterrupted Operation.

7. Indemnification

OPTIMIBI will defend Subscriber from third-party claims that the Software infringes intellectual property and will cover damages/fees, subject to conditions.

Exceptions include:

• Combinations with other products.
• Modifications by Subscriber.
• Breach of Agreement by Subscriber.

8. Limitation of Liability

• No liability for indirect, incidental, or consequential damages.
• Liability cap: Fees paid in the last 12 months.
• Exceptions: Fraud, gross negligence, confidentiality breach.

9. Term and Termination

• Agreement remains in effect while Software/Services are provided.
• Either party may terminate for breach (with 30-day notice to cure).
• Upon termination:
  • Software access ceases.
  • Fees remain due (unless OPTIMIBI breached).

10. General Provisions

• Governing Law: California, USA.
• Jurisdiction: Courts in San Francisco, California.
• No Assignment: Without prior written consent.
• Entire Agreement: Supersedes all prior agreements.

END OF DOCUMENT