Last Updated August 27, 2020
BY CLICKING THE “Start Free Trial” OR “Sign Up” BUTTON DISPLAYED ONLINE AS PART OF THE ORDERING PROCESS OR SIGNING AN ORDER CONFIRMATION THAT REFERS TO THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF OPTMYZR INC.’S (“OPTMYZR,” “OUR,” OR “WE”) ONLINE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE USE OF SOFTWARE COMPONENTS ON A HOSTED BASIS AND ASSOCIATED SUPPORT OPTIONS (COLLECTIVELY, THE “SERVICE”). YOU WARRANT AND REPRESENT THAT YOU ARE AT LEAST (18) YEARS OF AGE OR OLDER OR YOU MUST IMMEDIATELY STOP USE OF THIS SITE. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD AND UNCONDITIONALLY AGREED TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT THE TERMS OF THIS AGREEMENT WILL APPLY EACH TIME YOU ACCESS OUR SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
Subject to the terms of this Agreement, Optmyzr will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, and/or use of, the Service will be deemed to be your agreement to abide by this Agreement including any materials available on the Optmyzr website incorporated by reference herein, including but not limited to Optmyzr’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement. Optmyzr offers multiple products and editions of its products. This Agreement governs all products and services offered by Optmyzr.
1. Privacy & Security; Disclosure
Optmyzr reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. You consent to receive communications from us electronically. Non-Optmyzr customers who receive communications may ‘opt out’ of receiving future marketing and other communications from Optmyzr at email@example.com. Optmyzr customers will always receive account related emails. When we modify our privacy and security policies you may be notified of the changes by email and will be required to confirm your consent the next time you access the Optmyzr websites (the “Site”) after any changes. If you do not consent to any change in our privacy and security policies as regards the collection and processing of your Personal Data and the change is required to provide you the requested Services or for a legal reason, you agree that your refusal to consent may impair your use our Services or require you to discontinue use of our Services. Optmyzr reserves the right to disclose who its customers are, including disclosure on the Site and in its marketing materials. You may opt out of such disclosure at any time.
2. Contributor Disclosure
Optmyzr sponsor content may include blog(s), blog posts, notices, advertisements, sidebars, takeaways, embedded videos. (collectively “Contributor Content”) that are written or created by one or more contributors. (“Contributors”). Contributors receive cash compensation and/or other compensation for posting, uploading Contributor Content to the Service. The compensation received may influence Contributor Content uploaded, transmitted, and/or posted to the Service. The views and opinions expressed by any Contributor in Contributor Content on our Service is purely the Contributor’s own.
3. License Grant & Restrictions
Optmyzr hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Service during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. In the event that your subscription provided for a specific number of Users, your license to use the Service is limited to the specified number of Users. All rights not expressly granted to you are reserved by Optmyzr and its licensors. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, Optmyzr Technology or the Optmyzr Content in any way; (ii) modify or make derivative works based upon the Service, Optmyzr Technology or the Optmyzr Content; (iii) embed the Service as a “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service. The Service cannot be shared or used by more than one individual unless (and solely to the extent that) the Subscription allows for sharing within your internal organization. Sharing of the Service outside your organization is never allowed. The proper assignment of username and passwords for the Service and adherence to all terms of this Agreement and Subscription are your sole responsibility. You are responsible for maintaining the confidentiality of your usernames, passwords and accounts. Usernames and passwords may not be shared by more than one individual, and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service. You agree to immediately change your password and notify Optmyzr of any suspected or unauthorized access associated with your use of the Service or any other breach of security. You may use the Service only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or Optmyzr’s sites, servers or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on Optmyzr’s infrastructure. Optmyzr shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances. Optmyzr reserves the right, in our sole discretion, to deny registration of a user account, prohibit or deny you access to the Site (or any part thereof), with or without prior notice.
4. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Optmyzr immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Optmyzr immediately and use best efforts to stop immediately any copying or distribution of Optmyzr Content or Contributor Content that is known or suspected by you or your Users; (iii) not impersonate another Optmyzr user or provide false identity information to gain access to or use the Service; (iv) not use the Service to defame, abuse, harass, threaten or otherwise violate the legal right of others; (v) not publish, post, upload, email, distribute or disseminate any defamatory, misleading, infringing or unlawful content; and (vi) not collect, store or transmit Personal Data about individuals or any information that is subject to applicable privacy laws or regulations. You are solely responsible for all text, logos and images (“Customer Content”), all advertisements and any website reachable from the advertisements generated using the Service. You hereby represent, warrant and covenant to Optmyzr and its third party suppliers that (i) any Customer Content you provide is and shall be accurate, complete and current, (ii) you have all necessary rights and are fully authorized to publish the Customer Content and create or have created advertisements, and (iii) all Customer Content complies with the requirements set forth by Google and Microsoft on their respective websites with respect to the Google AdWords and Microsoft adCenter programs, as the case may be, including the trademark policies, policies regarding minors, editorial guidelines and creative limitations posted therein. You hereby authorize Optmyzr to allow such Customer Content and advertisements to be published throughout the network of advertising channels operated by Microsoft and Google, and their network of participating websites and other distribution outlets. You further represent, warrant and covenant to Optmyzr and its suppliers that (a) at all times you shall comply with all applicable law; (b) you will not generate, or encourage others to generate, automated or fraudulent impressions or clicks of advertisements on any Google or Microsoft advertising network; (c) you are responsible for obtaining and maintaining accounts for use of the Google AdWords program and Microsoft adCenter program; (d) your use of the Google AdWords program or Microsoft adCenter program is not for personal, family or household purposes; (e) your advertisements do not and will not advertise illegal activity or constitute illegal or fraudulent business practices in the jurisdiction in which the advertisements are displayed; (f) you will not misrepresent yourself, your age, or your affiliation with any person or entity, impersonate any person or entity, makes false or misleading statements; and (g) forge headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through the Services (either directly or indirectly through use of third party software).Further, you acknowledge and agree that Microsoft and/or Google may, in its sole discretion, (i) edit your Customer Content for size and fit purposes, (ii) label any advertisement as a “sponsored site,” “advertisement” or similar designation for clarification purposes, (iii) create advertisements based upon the Customer Content and other specifications provided by Optmyzr through the applicable API, and (iv) create, delete, modify and optimize your account. Optmyzr does not own any Customer Content or advertisements provided by you hereunder, provided that you hereby grant Optmyzr a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Content and advertisements for the sole purpose of providing you with the Service. You are solely responsible for all URLs required or used by you in connection with the Service. Any URL that includes or incorporates any variation of the name Optmyzr (a “Optmyzr URL”) shall (i) be owned by Optmyzr, (ii) require the consent of Optmyzr prior to your use, and (iii) only be used by you during the Term of this Agreement. Any URL used by you in connection with the Service that does not include or incorporate the name Optmyzr shall be owned by you. For the avoidance of doubt, you are solely responsible for all Customer Content provided or published by you in connection with the Service under any URL (including any Optmyzr URL).
5. Account Information and Data
Optmyzr does not own any keyword data, information, performance data, paid search campaigns or material that you submit to the Service in the course of using the Service (collectively, “Customer Data”). You hereby grant Optmyzr a worldwide, royalty-free, non-exclusive right during the License Term to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Data for the sole purposes of (i) processing your Customer Data in connection with providing the Service to you, and (ii) storing or hosting the Customer Data in a remote database or on the Site for access by your Users. Your private Customer Data is accessible only to you and persons explicitly authorized by you; data is NOT shared with other customers, or with any other third party; provided that Optmyzr reserves the right to use your Customer Data in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings as long as such metrics, data and trends do not contain uniquely identifiable Customer Data. You, not Optmyzr, shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Customer Data, and Optmyzr shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Use of the Service is subject to existing laws and legal processes. Nothing contained in this Agreement will limit Optmyzr’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service, which may include disclosing your Customer Data to the applicable authorities.
6. Intellectual Property Ownership
Optmyzr alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Optmyzr Technology, the Optmyzr Content and the Service and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by Optmyzr. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Optmyzr Technology or the Intellectual Property Rights owned by Optmyzr, Inc. The Optmyzr name, the Optmyzr logo, domain name, and the product and service names associated with the Service and Optmyzr Content are trademarks of Optmyzr or third parties, and no right or license is granted to use them hereunder. The Site may include trademarks, service marks or logos of third parties, all of which are the property of their respective owners. In addition, all content published on the Site belongs to Optmyzr and/or its licensors under applicable copyright law.
7. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. Optmyzr and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. Optmyzr does not endorse any sites on the Internet that are linked through the Service. Optmyzr provides these links to you only as a matter of convenience, and in no event shall Optmyzr or its licensors be responsible for any content, products, or other materials on or available from such sites. Optmyzr provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Service features that interoperate with the Google AdWords or Microsoft adCenter programs depend on the continuing availability of the Google AdWords or Microsoft adCenter, as the case may be, application programming interface (“API”) and program for use with the Services. If Google Inc. or its affiliates (“Google”) or Microsoft, Inc. or its affiliates (“Microsoft”) ceases to make the Google AdWords API or program, or Microsoft adCenter API or program, as the case may be, available on reasonable terms for the Services, Optmyzr may cease providing such Service features and you shall have no payment obligations with respect to such Service features for periods following such cessation.
8. Subscriptions and Payment
Some portions of our Service are billed on a subscription basis (“Subscription”) You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or semi-annual (every six months) basis, depending on the type of subscription plan you select when purchasing a Subscription. You shall pay all fees or charges to your account in accordance with the Subscription and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current price of the chosen Subscription at the fee currently in effect. All payments must be made in advance and amounts owed are payable via automated recurring credit card payment or electronic invoices. You must provide Optmyzr with a valid credit card as a condition to signing up for the Service. You hereby represent that you are authorized to provide any credit card you use to sign up for the Service. An authorized License Administrator may adjust the Service edition by executing an additional written Order Confirmation or using the web-based customer administration system within the Optmyzr product if it applies. Changes to the Service edition will result in an adjustment to your fees, and will be subject to the following: (i) the term for the new fees and new Service edition will be coterminous with the preexisting License Term (either Initial Term or Renewal Term, as the case may be); (ii) Service fees will be the then current, generally applicable license fee; (iii) any fee increase that results from changes made in the middle of a billing month will be charged in full on a pro-rated basis for the portion of the billing month following such change; and (iv) any fee reduction that results from changes made in the middle of a billing month will be pro-rated. Optmyzr reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail. All pricing terms are the confidential information of Optmyzr, and you agree not to disclose them to any third party.
9. Billing and Renewal
Optmyzr charges and collects in advance for use of the Service. Optmyzr will automatically renew your subscription as described below, and bill your credit card or submit electronic invoices as mutually agreed upon. The renewal charge will be equal to the Subscription in effect during the prior term, unless Optmyzr has given you at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Optmyzr’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Optmyzr’s income. Users in jurisdictions that collect value-add tax (“VAT”) must register as a business to use this Service. By registering in a jurisdiction that requires the collection of VAT, you warrant and represent that you are a business. Upon registration of your account you must provide Optmyzr your VAT registration number, and the name and principal address of your business so that we may comply with all VAT invoicing regulations. If you do not provide a valid VAT registration number or otherwise meet the requirements of this provision, Optmyzr reserves the right to terminate your account. When asked, you agree to provide Optmyzr with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Optmyzr reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to Optmyzr will be in US Dollars. If you believe your invoice is incorrect, you must contact Optmyzr in writing within forty-five (45) days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit, otherwise any inaccuracy will be deemed waived.
10. Non-Payment and Suspension
In addition to any other rights granted to Optmyzr herein, Optmyzr reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes more than days delinquent (falls into arrears). You agree and acknowledge that Optmyzr has no obligation to retain Customer Data or Customer Content and that such Customer Data and Customer Content may be irretrievably deleted if your account is thirty (30) days or more delinquent.
This Agreement commences on the Start Date which is the day you sign up on Optmyzr. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) (each, a “Renewal Term”) at Optmyzr’s then current fees, unless either party gives Sufficient Written Notice. “Sufficient Written Notice” will be thirty (30) days prior to the expiration of the Initial Term or applicable Renewal Term, unless otherwise agreed upon. In the event this Agreement expires or is terminated for any reason, you agree to extract your Customer Data and Customer Content from the Optmyzr platform prior to the effective date of such expiration or termination. You agree and acknowledge that Optmyzr has no obligation to retain the Customer Data or Customer Content, and may delete such Customer Data and Customer Content 30 days after expiration or termination. Upon any expiration or termination of this Agreement, your rights to use any Optmyzr URLs shall immediately terminate. The following sections shall survive any expiration or termination of this Agreement: 1, 3, 4, 5, 6, 8, 10, 13, 15-29.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Optmyzr Technology or Service will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, Optmyzr, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.
13. Copyright Policy
Optmyzr takes the intellectual property rights of others seriously and expects you to do the same on our Website. We will respond to notices of copyright infringement that comply with the requirements of the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. § 512), or applicable law if contended infringement occurs outside the United States. If you believe in good faith that User Content available through our Services infringes one or more of your copyrights, you may provide us written notice (“Take Down Notice”) and include the following information: A physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed (including a hyperlink to said work(s), if available), or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that website; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material (including a hyperlink to said work(s)); Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an email; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, his/her/its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Optmyzr a counter-notice.
Any Take-Down Notice or counter-notice must meet the then-current statutory requirements imposed by the DMCA; see https://www.copyright.gov/title17/92appb.html for details. Any Take-Down Notice or counter-notice must be sent to: Attn: Frederick Vallaeys, Optmyzr Inc., 551 Pilgrim Drive, Suite B, Foster City, California, 94404; or by email at firstname.lastname@example.org Consult your legal advisor before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Optmyzr represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Optmyzr help documentation (as may be updated from time to time) under normal use and circumstances. In the event the Service fails to perform substantially in accordance with such help documentation, and you promptly notify Optmyzr, Optmyzr will modify the Service and/or the documentation so that it conforms. The foregoing is your sole and exclusive remedy for Optmyzr’s failure to satisfy the foregoing representation. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
15. Mutual Indemnification
You shall indemnify and hold Optmyzr, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data or the Customer Content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; (iii) a claim arising from the breach by you or your Users of this Agreement; or (iv) any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you, provided in any such case that Optmyzr (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Optmyzr of all liability and such settlement does not affect Optmyzr’s business or Service); (c) provides to you all reasonably available information and assistance; and (d) has not compromised or settled such claim. Optmyzr shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly and knowingly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that you (a) promptly give written notice of the claim to Optmyzr; (b) give Optmyzr sole control of the defense and settlement of the claim (provided that Optmyzr may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Optmyzr all reasonably available information and assistance; and (d) have not compromised or settled such claim. Optmyzr shall have no indemnification obligation, and you shall indemnify Optmyzr pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, services, hardware or business process(es). If as a result of any infringement by the Service (other than as described in the preceding sentence) your use of the Service is enjoined by a court of law, Optmyzr will either modify the Service to make it non-infringing, acquire a license for you to continue using the Service, or if neither option is possible, refund to you the applicable fees paid by you in advance.
16. Disclaimer of Warranties
OPTMYZR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. OPTMYZR AND ITS MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRIBUTOR(S), LICENSORS, LICENSEES, SERVICE PROVIDERS, AND OTHER AFFILIATES (COLLECTIVELY “ASSOCIATED PARTIES”) DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, LEADS OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY OPTMYZR AND ASSOCIATED PARTIES.
NO OPINION, ADVICE, OR STATEMENT OF OPTMYZR OR ANY ASSOCIATED PARTY, WHETHER MADE ON THE SERVICE, OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT OTHERWISE EXPRESSLY STATED HEREIN. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF ANY OPINION, ADVICE, INFORMATION OR STATEMENT AVAILABLE ON OPTMYZR SERVICE.
17. Limitation of Liability
IN NO EVENT SHALL OPTMYZR’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE CURRENT SUBSCRIPTION RENEWAL PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, THE OPTMYZR TECHNOLOGY OR CONTENT, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OPTMYZR’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE OPTMYZR SERVICE, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE OPTMYZR TECHNOLOGY OR SERVICE, OR OTHER WEBSITE CONTENT OWNED OR CONTROLLED BY OPTMYZR AND ASSOCIATED PARTIES.
BY ACCESSING THE OPTMYZR WEBSITE YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF CALIFORNIA CODE § 1542, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
19. Local Laws and Export Control
The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other applicable countries. You acknowledge and agree that the Service 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 or any other applicable country 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 Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and other applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service 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. Optmyzr and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Optmyzr Content or Customer Content contrary to United States or other applicable law is prohibited. None of the Optmyzr Content or Customer Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government and other applicable governmental bodies for such purposes.
20. Communications, Notices, and Newsletters
You may opt in to receive our monthly newsletter, as well as invitations to our educational webinars and promotions for our products (collectively “Communications”). As we appreciate your time is valuable you will usually only receive up to 5 emails per month and these Communications will be solely for products and services offered by Optmyzr. You may ‘opt out’ of receiving future marketing and other communications from Optmyzr at email@example.com at any time. Optmyzr customers will always receive account related emails, such as administrative notices and service announcements or changes regarding policies governing use of our Services.
21. Interruption of Service.
We reserve the right to update, modify, suspend, discontinue or close, temporarily or permanently, the Service (or any part thereof) at any time with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. To protect the integrity of the Service, we reserve the right at any time, in our sole discretion, to block users from certain IP addresses from accessing the Service.Transactions conducted through the Internet may be subject to interruption, blackout, delay or error. Optmyzr shall not be responsible in any way for loss of accuracy or timeliness of any message sent or transaction conducted through this Service arising from or in relation to any malfunctions in communication facilities that are out of the control of Optmyzr.
Optmyzr may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Optmyzr’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Optmyzr’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Optmyzr (such notice shall be deemed given when received by Optmyzr) at any time by any of the following: letter to Optmyzr delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Optmyzr, in either case, addressed to the attention of: COO, Optmyzr.
23. Modification to Terms
Optmyzr reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
24. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Optmyzr but may be assigned without your consent by Optmyzr to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Optmyzr directly or indirectly owning or controlling 50% or more of you shall entitle Optmyzr to terminate this Agreement for cause immediately upon written notice.
25. Free Trials
In the event that you are being provided with a free trial under this Agreement, all provisions of this Agreement pertaining to warranties by Optmyzr, indemnification by Optmyzr, payment obligations and similar shall not apply. In addition, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. Further, Optmyzr may terminate a free trial at any time and for any reason.
26. Governing Law and Jurisdiction.
All matters relating to the Service and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Service shall be instituted exclusively in the federal courts of the United States located in the Northern District of California or the courts of the State of California located in Santa Clara County, California although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country if you reside outside the United States. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts, including all forum non conveniens defenses.
Disputes in the United States and Non-European Member States
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential, binding arbitration in Santa Clara County, California, before one (1) arbitrator. The arbitration shall be initiated and conducted according to JAMS Arbitration Rules and Procedures, and where consistent, California law, without regard to or application of conflict of law principles of your state or country of residence, at the San Jose, California office of JAMS including the Optional Appeals Procedure. If you reside out the state of California or the United State you understand and agree to submit to the jurisdiction and venue of Santa Clara County, California and hereby waive all forum non conveniens defenses.
The arbitrator shall be a disinterested attorney or retired judge experienced in e-commerce and/or intellectual property matters. Such arbitration shall include discovery proceedings as provided under Section 1283.05 of the California Code of Civil Procedure. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English at the expense of the party presenting the witness. Judgment on any award may be entered in any court of competent jurisdiction. The Parties hereto consent to the jurisdiction of the Superior Court of the State of California, and the United States Northern Judicial District of California, for purposes of enforcing this arbitration agreement and proceedings and entry of judgment on any award and further consent that any process or notice of motion or other application to the Court or the judge thereof may be served by certified or registered mail, return receipt requested. The prevailing party shall be awarded costs and reasonable attorneys’ fees associated with the arbitration.
You understand that by using the Website you GIVE UP YOUR RIGHT TO GO TO COURT, to assert or defend any claims between you and Optmyzr (except for matters brought in small claims court) BEFORE A JUDGE OR JURY. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction over the parties. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
Attorney Fees: In any arbitration or court action between the parties to enforce this Agreement or the rights of the parties hereunder, the prevailing party in such action (as determined by the arbitral panel or court) will be entitled to receive a reasonable sum for its attorney’s fees and all other reasonable costs and expenses incurred in such action or suit.
Small Claims Action: If your claim meets the requirements to file a small claims action, you agree to the sole jurisdiction and venue of any small claims court located in Santa Clara County, California. To the extent state law applies, California law shall govern without regard to or application of the conflict of law provisions of your state or country of residence.
No Class Action: You agree to give up your right to participate in a class action or class proceeding, including class arbitration, limited attorney general action, or other representative action or proceeding.
Disputes in European Member States and Switzerland.
This Agreement is governed by and construed in accordance with the laws of the State of California, USA, and the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Optmyzr both agrees to submit to the non-exclusive jurisdiction of the courts of the federal and state courts located in Santa Clara County,in the State of California, USA, which means that you may bring a claim to enforce your consumer protection rights in connection with this Agreement in California or in the EU country in which you live or Switzerland. If you are a resident of any European Union country or Norway, Iceland and Liechtenstein, the European Commission provides for an online dispute resolution platform, which you can access here: https://ec.europa.eu/consumers/odr. If you would like to bring a matter to our attention, please contact us at info@Optmyzr.com.
28. Limitation on Time to File Claims.
29. Feedback and Suggestions
If you submit feedback, comments, ideas or suggestions (collectively “Suggestions”) about the Service, you acknowledge that such Suggestions are unsolicited and that we may, but have no obligation, to use your Suggestions. You further agree and acknowledge that any use of your Suggestions by us, for any purpose, will be without any liability to us, or payment of any kind to you.
30. Notice of California Users
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at(800) 952-5210.
33. Questions or Additional Information
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@Optmyzr.com.