OPTIZMO™ Terms of Service
OPTIZMO™ Terms of Service
Terms of Service
- OPTIZMO Technologies does not allow illegal content/material.
- OPTIZMO Technologies does not support unsolicited email that is not in direct compliance with the U.S. CAN-SPAM Act of 2003 and provides the “method of” and “recommendation to” include at least one single action method of unsubscribing/opting-out in every email originated or sent by its users. OPTIZMO Technologies reserves the right to terminate your account at any time without a refund.
Reasons for termination include, but are not limited to:
- Abuse of the machines, mechanisms, and applications provided by our software as a service (SaaS) – either intentional or due to improper coding and/or conduct.
- Committing or Promoting any type of illegal activity including fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, “warez”, “hacking”/”cracking”/”key generators”.
- Using the Services to traffic in illegal drugs, gambling and/or obscene materials (that are in direct violation of either state or federal laws OR deemed as such at OPTIZMO’s sole discretion).
- Using the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party.
- Additionally, OPTIZMO Technologies reserves the right to terminate your account if at any time your email offers, landing pages, redirects, etc. contain pornography and/or nudity of any kind, including but not limited to, adult pornography, Anime, child pornography, “adult content” and/or the written word of a sexual nature.
- Attempts to circumvent any of our security policies, procedures or systems.
This User Agreement (“Agreement”) is an agreement between OPTIZMO TECHNOLOGIES, LLC. (“Company”) and the party set forth in the related order, service, and/or account (“Customer”, “User” or “You”) incorporated herein by reference (together with any subsequent and applicable service request forms and/or online sign-up/web forms submitted by Customer, the “Service Request Form”), and applies to the purchase(s) of all services ordered by Customer (collectively, the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Acceptable Use Policy.
Under this Agreement, Customer shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed at Company’s website ( www.optizmo.com) on this page (https://www.optizmo.com/optizmo-acceptable-use-policy/), and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistency between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content or email offers that are sent, stored on or distributed or disseminated by Customer via the Services (the “Customer Content”). Customer Content includes content of Customer’s customers and/or users of Customer’s website. Accordingly, under this Agreement, you will be responsible for Your customers’ content and activities with regard to emails originated directly by you, on your behalf, or by you on behalf of a third party.
Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP.
In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer’s customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
2. Term; Termination; Cancellation Policy.
a. The initial term of this Agreement shall be as set forth in the Service Request Form and/or Master Services Agreement(s) and/or online sign-up/web forms between the company and the Customer (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew.
ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL/INVOICE YOU AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THE CUSTOMER’S SERVICE REQUEST FORM AND/OR MASTER SERVICES AGREEMENT AND/OR BOTH AND/OR ONLINE SIGN-UP/WEB FORMS.
b. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
- If the payment method You use with OPTIZMO, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel, You acknowledge, agree and authorize OPTIZMO Technologies to continue billing your credit card and you remain responsible for any uncollected amounts.
- Additionally, in an effort to ensure your OPTIZMO services, domain registration, and/or IP registration renewal processes successfully, OPTIZMO Technologies may process the renewal charge up to two weeks in advance of your expiration date unless you explicitly request otherwise on any services that are not being billed in arrears for the services rendered by OPTIZMO.
c. This Agreement may be terminated
1. by either party by giving the other party thirty (30) days prior written notice (e.g. electronic mail) subject to any outstanding balances being paid in full, payable by Customer,
2. by Company in the event of nonpayment by Customer,
- by Company, at any time, without notice, if, in Company’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer’s use of the Services disrupts or, in Company’s sole and absolute discretion and/or judgment, could disrupt, Company’s business operations, and/or
- by Company as provided herein.
d. If You cancel this Agreement, upon proper notice to Company, prior to the end of the Initial Term or any Term thereafter,
1. You shall be obligated to pay all applicable fees and charges accrued prior to the effectiveness of such cancellation,
2. Company may (but is not obligated to) refund to You any pre-paid fees for Services for the full months remaining after effectiveness of cancellation assuming that OPTIZMO provided domains, IPs, and/or links are no longer receiving traffic and assuming that the discontinuation of these links do not create a compliance violation with governmental and regulatory authorities (i.e., no partial month fees shall be refunded), less any setup fees, design services, and any discount applied for prepayment, provided that, You are not in breach of any terms and conditions of this AUP, User Agreement, Anti-Spam Policy or IP Address Policy; and/or,
3. You shall be obligated to pay one hundred percent (100%) of all applicable charges for all Services for each month remaining in the Term (other than any fees as provided in (ii) above). Any cancellation request shall be effective thirty (30) days after receipt by Company, unless a later date is specified in such request.
d. Company may terminate this Agreement, without penalty,
1. if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or
2. Immediately, by way of written notice, if Company determines that Customer’s use of the Services, the Website or the Customer Content violates any Company term or condition, including the AUP, User Agreement, Anti-Spam Policy, or IP Address Policy. If Company cancels this Agreement prior to the end of the Term for Your breach of this Agreement and/or related agreements, including the AUP, User Agreement, Anti-Spam Policy, or IP Address Policy or Customer’s use of the Services disrupts our network, Company shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, You shall be obligated to pay 100% of all applicable charges for all Services for each month remaining in the Term and Company shall have the right to charge You an administrative fee of up to a maximum of $5000.00 (USD) contingent on remediation requirements of the Company to maintain the Company’s reputation and good business practice.
3. immediately, upon any notification of legal actions being taken by Customer against Company.
e. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein and You shall immediately cease all use of the Services and related materials in your possession that are proprietary to the Company. The provisions of Sections 2(e), 3, 4, 10, 11, 13, 15 and 16 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement.
Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
3. Customer’s Responsibilities.
b. Customer will cooperate fully with Company in connection with Company’s performance of the Services up to and including Customer notifying Company of any issues with Company provided service(s). Customer will notify Company of any change in Customer’s mailing address, telephone, electronic mail or other contact information.
4. Customer’s Representations and Warranties.
a. Customer hereby represents and warrants to Company, and agrees that during the Term any Term thereafter Customer will ensure that:
1. Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
2. Customer’s use, publication and display of the Customer Content will not infringe on any copyright, patent, trademark, trade secret or other proprietary or intellectual property rights of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
3. Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Website, Customer Landing Pages and/or Customer Email Offers will be used only for lawful purposes; and
4. Customer has used its best efforts to ensure that the Customer Content and the use of Company provided services is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
b. Customer shall be solely responsible for the development, operation and maintenance of Customer’s website, landing pages, online stores, email offers, and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer’s products, including, without limitation:
1. the accuracy and appropriateness of the Customer Content and content and material appearing within commercial email offers and website landing pages,
- ensuring that the Customer Content and content and materials appearing in its store(s) or on its product(s) do not violate or infringe upon the rights of any person, and
3. ensuring that the Customer Content is not defamatory or otherwise illegal.
c. Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
d. In addition to transactions entered into by Customer directly, the Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s account, whether or not the transactions were on Customer’s behalf.
5. License to Company.
Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order:
- Digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content as needed to provide Company Services; and
- Make archival or back-up copies of the Customer Content as needed to provide Company Services.
- Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer, along with any content liability.
- Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
6. Billing and Payment
a. Customer will pay to Company the applicable Service Fees for the Services provided in the manner set forth in the Service Request Form and for any ancillary and tertiary add-on services fully disclosed and acknowledged by Customer, such as online web forms, acknowledgements, and sign-up forms (eg. self-serve sign-up forms for OPTIZMO provided mailer services, such as ACCESS).
b. Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term, where applicable.
c. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to the Company’s invoices for the fees as separate charges to be paid by Customer (when and where applicable). All fees are fully earned when due and non-refundable when paid. Sales and Use tax fees are subject to change at any time as a result of federal or state legislation and/or NEXUS tax law.
d. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, the Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
e. If any check is returned for insufficient funds Company may impose a minimum processing charge of $25.00.
f. In the event that any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
g. There may be a minimum $100.00 charge to reinstate accounts that have been suspended or terminated. Reinstatement fees are charged at the sole discretion of the Company.
h. Customer acknowledges and agrees that Company may pre-charge Customer’s fees for the Services to its credit card supplied by Customer during registration for the Initial Term, where applicable.
i. YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
7. Company as Reseller or Licensor.
Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with some products and/or Services that were or are manufactured or provided by a third party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
8. Internet Protocol (IP) Address Ownership.
If Company assigns Customer an Internet Protocol (“IP”) address for Customer’s use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses without notice, in its sole and absolute discretion. (See below IP Address Policy for additional information on IP Address ownership and practices.)
a. grants to Company a license to cache the entirety of the Customer Content, including content supplied by third parties, hosted by Company under this Agreement and
b. agrees that such caching is not an infringement of any of Customer’s intellectual property rights or any third party’s intellectual property rights.
10. CPU Usage.
Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Company’s servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
11. Bandwidth and Disk Usage
Company shall provide Customer with a large volume of bandwidth, disk space and other resources, such as email and/or file-transfer-protocol (“FTP/SFTP”) accounts as needed to provide services, either permanently or from time to time during the service term. The Services are intended for normal use only within the scope of Company provided services and uniform understanding of the intent of services provided by Company. Company reserves the right to prohibit, block, or otherwise stop any Customer automation scripts or other solutions intended to “work-around” or “circumvent” Company provided service limitations.
12. Any activity that results in excessive usage inconsistent with normal usage patterns is strictly prohibited.
Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the “Agreed Usage”). These allotments are optimized and dedicated towards the provisioning of services provided by the Company. Company will monitor Customer’s bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, which actions may be taken in Company’s sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules and regulations regarding Customer’s Website, Customer Content and/or Customer’s electronic mail services and will use each, including bandwidth, disk space and other resources only for lawful purposes. Customer may not utilize: the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party; the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States in violation of applicable export control laws; the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message. If Company learns or discovers that Customer is violating any law related to Customer’s Website, Customer Content and/or Customer’s electronic mail services, use of bandwidth, disk usage or Agreed Usage, Company may be obligated to inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to Customer, Customer’s Website, Customer Content and/or Customer’s electronic mail.
13. Domain Services
In addition to the applicable terms and conditions contained herein:
a. If Customer signs up for Company’s Domain Services to register and use a domain name with Company, Customer agrees to pay Company the fee as set forth on our website and/or User Interface, or other Company documentation. Customer’s billing date will be determined based on the terms acknowledged at the time of purchase to establish the Domain Services with Company. Payments are non-refundable. If for any reason Company is unable to charge Customer’s payment method for the full amount owed Company for the Services provided, or if Company is charged a penalty for any fee it previously charged to Your payment method, Customer agrees that Company may pursue all available remedies in order to obtain payment. Customer agrees that among the remedies Company may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to Customer of Customer’s service. Company reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, and disputes that require legal services. These charges will be billed to the payment method Company has on file for Customer. Customer agrees that Company will purchase/register domain(s) on the Customer’s behalf, but Company is the owner of the domain, with regard to relevant WHOIS and other domain registration information.
b. Customer agrees to be responsible for notifying Company should Customer desire to terminate the use of any of the Domain Services, including, but not limited to, those purchased. Notification of Customer’s intent to terminate must be provided to Company thirty (30) days prior to Customer’s billing date. In the absence of notification from Customer, Company will automatically continue the Domain Services indefinitely and will charge Customer’s payment method that is on file with Company, at Company’s then current rates. It is Customer’s responsibility to keep their payment method information current, which includes the expiration date if using a credit card. In the event Customer terminates the Domain Services, Company will not transfer such services to another provider.
c. Company will provide Customer with the Domain Services as long as Customer abides by the terms and conditions set forth herein and in each of Company’s policies and procedures, including the Company AUP.
d. By using any of the Domain Services, Customer agrees that Company may point the domain name or DNS to one of Company’s or Company’s affiliates web pages, and that they may place messaging, including advertising, on Customer’s web page and that Company specifically reserves this right. Customer shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of Customer’s Opt-Out Pages, hosted and owned by Company.
e. Customer agrees to indemnify and hold harmless Company for any complications arising out of use of the Domain Services, including, but not limited to, actions Company chooses to take to remedy Customer’s improper or illegal use of a landing page, website, Opt-Out page, or other mechanism hosted by Company. Customer agrees it is not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to any improper or illegal use of the Domain Services.
f. If a dispute arises as a result of one or more of Customer’s Domains, Customer will indemnify, defend and hold Company harmless for damages arising out of such dispute. Customer also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a domain or IP address hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the domain and/or IP address to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
14. Property Rights
a. Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company’s technology for any purpose other than accessing and using the Services within its intended use. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Company.
b. Company owns all rights, title and interest in and to the Services and Company’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems (“Marks”). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
15. Disclaimer of Warranty
Customer agrees to use all Services and any information obtained through or from Company, at Customer’s own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company’s host computers, network hubs and points of presence or the Internet.
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “COMPANY PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
The terms of this section shall survive any termination of this Agreement.
16. Limited Warranty
a. Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees prorated by the number of hours in which the Services have been interrupted at Company’s sole discretion. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE IF SERVICES ARE OUTSIDE OF COMPANY’S FULL CONTROL.
17. Limitation of Liability.
a. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer’s indemnification obligations.
e. Notwithstanding anything to the contrary in this Agreement, Company’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the monthly period prior to or during the date that the perceived damage or loss occurred or the cause of action arose.
f. Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one of its customers, that corrective action may adversely affect other customers of Customer, and the Customer agrees that the Company shall have no liability to Customer, any of its customers due to such corrective action by Company.
g. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
19. Arbitration Agreement And Class Action Waiver.
a. Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between the Customer and Company. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between Customer and Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, Customer may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of Customer’s right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law).
For the purpose of this Arbitration Agreement, “OPTIZMO” or “Company” means OPTIZMO Technologies, LLC and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between Customer and Company regarding any aspect of Customer’s relationship with Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
b. WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
c. Pre-Arbitration Dispute Resolution. For all Disputes, Customer must first give Company an opportunity to resolve the Dispute. Customer must commence this process by mailing written notification to 401 Congress Avenue, Suite 1540, Austin, TX 78701. That written notification must include (1) Customer name, (2) Customer address, (3) a written description of the Dispute, and (4) a description of the specific relief You seek. If Company does not resolve the Dispute to Customer’s satisfaction within 90 days after it receives your written notification, You may pursue Your Dispute in arbitration.
d. Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either Customer or Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative or class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.
For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because Customer’s contract with Company, the Terms of Service, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
e. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
f. Location of Arbitration. Customer may initiate arbitration in either Austin, TX, or that of the defending party in written notification of Pre-Arbitration Dispute Resolution. In the event that Company initiates an arbitration, it may only do so in the federal judicial district that includes Customer’s address that You provide in Your written notification of Pre-Arbitration Dispute Resolution.
g. Payment of Arbitration Fees and Costs. Whichever party initiates arbitration shall pay all arbitration filing fees and arbitrator’s costs and expenses. Thereafter, each party shall be responsible for their respective fees, costs and expenses incurred in the arbitration, as determined by the arbitrator, including, but not limited to, their own attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if Customer provides notice and negotiates in good faith with Company as provided in the section above titled “Pre-Arbitration Dispute Resolution” and the arbitrator concludes that Customer is the prevailing party in the arbitration, Customer will be entitled to recover from OPTIZMO its actual and reasonable attorney’s fees and costs as determined by the arbitrator, not to exceed the full amount paid to Company for services rendered.
h. Class Action Waiver. The parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both Customer and Company specifically agree in writing to do so following initiation of the arbitration. Neither Customer, nor any other Member of Company and/or user of Company services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
i. Limitation of Procedural Rights. Customer understands and agrees that, by entering into this Arbitration Agreement, Customer and Company are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, Customer and Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Customer gives up those rights. Other rights that Customer would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
j. Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
k. Continuation. This Arbitration Agreement shall survive the termination of Customer’s contract with Company and its use of Company services.
a. Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Services will be governed by the laws of the state of Texas, U.S.A., excluding its conflict of law provisions.
c. Headings. The headings herein are for convenience only and are not part of this Agreement.
d. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless acknowledged either in writing or by digitally confirming Customer Acceptance by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s website.
e. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
f. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile or electronic mail the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers or email addresses provided by the Customer to the Company. Either party may change its address, facsimile number, or electronic mailing address for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
g. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
h. Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Company and an agreeable notification in writing with confirmed receipt and acceptance by Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
i. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
j. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
k. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
l. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Description is an intended third party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
m. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
n. Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
ACCEPTANCE OF AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICES AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Civil Subpoena Policy
If you seek the identity or account information of a Company Customer in connection with a civil legal matter, you must fax, mail, or serve the Company with a valid subpoena.
Submission of Subpoenas
The Company is located in Austin, TX and all civil subpoenas should be served at or mailed to:
OPTIZMO TECHNOLOGIES, INC.
Attn: General Counsel
401 Congress Avenue, Suite 1540
Austin, TX 78701
Upon the receipt of a validly issued civil subpoena, the Company will promptly notify the Customer whose information is sought via email or U.S. mail. If the circumstances do not amount to an emergency, the Company will not immediately produce the Customer information sought by the subpoena and will provide the Customer an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance
The Company will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Company invoice. Checks should be made out to OPTIZMO Technologies, LLC.
The Company’s subpoena compliance costs are as follows:
- Research – $200.00/hour (USD)
- Federal Express – Cost as Billed
- Copies – $1USD/page (USD)
- Compact Discs – $10/Disc (USD)
Policies Regarding Email
The Company will not produce the content of email, as the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. The Company’s email servers do not retain deleted or sent email. However, deleted email may be recoverable from back-up servers for a limited time.
The Company reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the Company email address is related to the pending litigation and the underlying subpoena.
- OPTIZMO TECHNOLOGIES, INC., (“the Company”) maintains a zero tolerance policy for use of its network or services in any manner associated with the transmission, distribution or delivery of any bulk email, including unsolicited bulk or unsolicited commercial email (“SPAM”) that is in direct violation of the U.S CAN-SPAM Act of 2003. In addition, email sent, or caused to be sent, to or through our network may not:
o Use or contain invalid or forged headers;
o Use or contain invalid or non-existent domain names;
o Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
o Use other means of deceptive addressing;
o Use a third party’s Internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
o Contain false or misleading information in the subject line or otherwise contain false or misleading content;
o Fail to comply with additional technical standards described below;
o Otherwise violate the Company’s terms and conditions.
o Fail to comply with the U.S. CAN-SPAM Act of 2003.
o Fail to comply with any applicable state, federal, or international laws.
- The Company does not permit or authorize any attempt to use its network in a manner that could damage, disable, overburden or impair any aspect of any of our services, or that could interfere with any other party’s use and enjoyment of any Company product or Services.
- The Company monitors all traffic to and from its servers. Customers suspected of using the Company’s products and Services for any unapproved and unintended purpose will be investigated.
- If the Company believes that unauthorized or improper use is being made of any product or Services, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. The Company may immediately terminate any account on any product or Services which it determines, in its sole discretion, is transmitting or is otherwise connected with any email activity that violates this policy or the U.S. CAN-SPAM Act of 2003.
- The Company reserves the right to suspend and/or cancel permanently any and all Services provided to a Customer without any notification. If a Customer is in violation of any term or condition of this Anti-Spam Policy, the Acceptable Use Policy, User Agreement, Terms of Service Agreement or uses of Company’s Services to disrupt or, in the Company’s sole judgment, could disrupt the Company’s business operations, the Company reserves the right to charge such Customer an administrative fee equal to $1,000 (USD) per violation.
- Nothing in this policy is intended to grant any right to transmit or send email to, or through, our network. Failure to enforce this policy in every instance does not amount to a waiver of the Company’s rights. The intent of OPTIZMO services are that the services be used for email compliance in accordance with best practices in data security and risk mitigation.
- Unauthorized use of the Company’s network in connection with the transmission of unsolicited email, including the transmission of email in violation of this policy and the U.S. CAN-SPAM Act of 2003, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by state and federal laws.
Domain Name Dispute Claims
Please refer to the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) if you have a concern or dispute concerning a domain name. The UDRP covers domain names disputes; this Policy specifically excludes domain name disputes. Please see http://www.icann.org/udrp/udrp.htm.
Copyright Infringement Claims
If You believe that material located on a website, landing page, domain name, or IP address hosted by Company violates Customer’s copyright, You are encouraged to notify the Company. The Company will respond to all such notices. The response by Company may include removing the infringing material or disabling all links to the infringing material if appropriate and required. The Company will terminate a customer’s access to and use of the of infringing materials if the Customer is determined to be a repeat infringer of the copyrights or other intellectual property rights of Company or others. In the case of such termination, Company will have no obligation to provide a refund of any amounts previously paid to Company.
Unlimited Disk Space & Bandwidth
While Company does not meter disk space & bandwidth, the purpose of an OPTIZMO account is to provide Customer with a web-based SaaS application to help automate email compliance and the collection, storage, and distribution of suppression files (aka Do-Not-Email or DNE Lists). Overriding Company infrastructural, technological, and security protocols and restrictions is strictly prohibited.
Complimentary Managed Domain for SUPPRESS Users
Company provides every Customer with one complimentary managed domain name in order to collect unsubscribe requests or Opt-Out requests from email recipients. All complimentary domains are provisioned upon account sign-up and share an IP address with other OPTIZMO Customers.
- Additional Managed Domain Names can be purchased at an additional cost, through our Managed Domain & IP Service.
- Managed Domains can be spread across multiple shared IP Addresses or assigned to a unique/dedicated IP Address. IP Address provisioning costs may apply and may vary based on Shared vs. Dedicated IP Addresses.
Customers may not use Company’s network as to attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the Customer, logging into a server or account that Customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization’s security policy.
Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mailbombing, or other deliberate attempts to overload or crash a host or network.
Customers will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on our network, or denial of service, deliberate or not, caused by forging Address Resolution Protocol (ARP) queries or replies or by configuring IPs into their machine which were not assigned to their server. Any of these actions may result in disconnection of the server at fault from the network and/or correction of the fault at the Customer’s risk and expense. Any loss of functionality caused by the attempted correction of the problem will be the Customer’s responsibility to solve. If the malignity of the problem is deemed by Company to not warrant such drastic action, the Customer will be contacted via the ticketing system to correct the problem itself. Customers are responsible for maintaining their contact information in the ticketing system such that the email address is always reachable even in the event of their OPTIZMO servers being shut down.
If Customer’s servers, domains, or IP Addresses are the initiator or target of a denial of service attack that adversely affects Company’s/somebody else’s network or account, Company reserves the right to terminate Customer account without warning and Customer will be held responsible for any charges that may result from this action.
Activities that attract denial of service attacks are expressly prohibited. Customers involved in these activities will be terminated as soon as Company is aware of them. These activities include, but are not limited to: selling shell accounts, and involvement with Internet Relay Chat (IRC) of any kind. This prohibition is for the protection of Company’s customer base as a whole; these kinds of services tend to attract attacks that have the potential to degrade service for all of the Company’s customers.
The Company will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Customers who violate systems or network security may incur criminal or civil liability. Company reserves the right to charge up to $500 (USD) per complaint to investigate.
Mandatory Security Updates
From time to time, the Company notifies its Customers of any exploit deemed potentially catastrophic. For an exploit to be considered catastrophic, it must be attacking widely deployed applications that are in use on a majority of servers. For example, but not limited to, software related to DNS, APACHE, and SENDMAIL.
The security notification will be sent via Company’s Customer subscribed mailing list, with a subject line of “Mandatory Security Update”. It will provide a synopsis of the exploit, what is affected, and probable repercussions associated with failure to update.
Company maintains, as a convenience to its Customers, regular automated data backups on accounts. While the Company maintains the previously stated backups, this service is provided as a convenience only and the Company assumes no liability as to the availability or completeness of Customer data backups. Customer is expected and encouraged to maintain backup copies of their own data.
IP Address Policy
The Company purchases and provisions IP addresses from various sources and these IP addresses remain internal to the Company and are not resold or made available for direct use by the Customer. The Company makes no guarantees that IP addresses will be static and unchanged over time. The Company does not support the direct use of any Company owned IP addresses by Customer and will not be held responsible, financially or otherwise for any use thereof. All Company resources must be accessed by their Domain name.
The Company may assign its Customers IP addresses on a temporary basis or for the life of the contract. Customer agrees that IP addresses are not portable, and acknowledges that IP addresses are the sole property of Company and are assigned as part of the services. Furthermore, Customer acknowledges that use of IP addresses not allocated by Company to customers may become expressly prohibited and will incur a penalty fee if Customer’s emailing and marketing practices threaten the security and compliance of Company and/or other Customers of Company.
Thank you for deciding to use OPTIZMO’s developer services, integration resources and associated software (collectively, “APIs”). By accessing or using our APIs, you are agreeing to the API terms below.
- If you use the APIs as an interface to, or in conjunction with other OPTIZMO products or services, then the terms for those other products or services also apply.
- The APIs are intended to assist in the enhancement of your websites and applications and such use is termed “API Client(s)”. You agree that OPTIZMO may monitor your use of the APIs to improve the Service, verify your compliance with the terms and ensure the quality of our services. OPTIZMO may access and use your API Client while carrying out this monitoring and may suspend or terminate your or your API Client(s) access to the APIs without notice if we reasonably believe that you are in violation of the Terms.
- In order to access OPTIZMO APIs you may be required to provide certain identifying information (e.g email address) during the registration process for the APIs or for continued use of the APIs. It is your obligation to provide accurate identifying information and to promptly notify OPTIZMO of any changes to these details.
- Your API credentials are intended for use by only you and your API Client(s). You will make all reasonable efforts to keep your credentials confidential and prevent other API Clients from using your credentials. At no time may credentials be published publicly such as on open source projects.
- You will only access (or attempt to access) an API by the means described in the documentation of that API. If OPTIZMO assigns you developer credentials (e.g. client IDs), you must use them with the applicable APIs. You will not misrepresent or mask either your identity or your API Client’s identity when using the APIs.
- You will require your end users to comply with (and not knowingly enable them to violate) the Terms and applicable laws and regulations.
- At our sole discretion, OPTIZMO sets and enforces limits on your use of the APIs (e.g. limiting the number of API requests that you may make or the number of users you may serve), in our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented with each API. If you would like to use any API beyond these limits, you must obtain OPTIZMO’s written consent and you may need to agree to additional Terms for such use.
- OPTIZMO may send you certain communications and directions in connection with your use of the APIs. It is your obligation to review all such communication and directions and act accordingly.
- If you provide feedback or suggestions about our APIs, then we (and those we allow) may use such information without obligation to you.
- The Terms are non-exclusive. You acknowledge that OPTIZMO may develop products or services that may compete with API Clients or any other products or services.
- Your API Clients remain wholly owned by you and by using OPTIZMO APIs you do not acquire ownership of any rights in our APIs or the content that is delivered via our APIs.
- You will use all reasonable efforts to protect all information (including PII) collected by your API Client from unauthorized access or use and agree to promptly report to OPTIZMO and your users any unauthorized access or use of such information to the extent required by applicable law.
- You must not use the APIs to:
- Interfere with or disrupt the APIs or the servers or networks providing the APIs.
- Perform or attempt to perform any destructive actions including but not limited to (denial of service attacks or the introduction of viruses, worms, defects or malware).
- Sublicense an API for use by a third party. Consequently, you will not create an API Client that functions substantially the same as the APIs and offer it for use by third parties.
- Reverse engineer or attempt to extract the source code from any API or any related software.
- Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party.
- Misrepresent the source or ownership.
- Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
- Use data obtained by the API for any purpose other than which it is intended through means such as scraping large quantities of data for purposes other than suppression list management.
- Access or attempt to access through techniques such as brute force attacks any data that is unconnected to your account.
- Any data obtained from the OPTIZMO APIs must be made at least as portable from your API Client(s) as from OPTIZMO’s Services.
- Our communications to you and our APIs may contain OPTIZMO confidential information (either explicitly marked as such or information that would normally be considered confidential). You agree to keep confidential information private and will not disclose it to any third parties without the written consent of OPTIZMO. If compelled to disclose confidential information by law, you may do so provided you provide written notice to OPTIZMO or a court orders you not to notify OPTIZMO.
Customers are prohibited from transmitting on or through any of Company’s Services, any material that is, in Company’s sole discretion, unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law.
The Company’s Services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States federal or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. Company reserves the right to remove such illegal material from its servers.
The Customer is responsible for keeping billing data with Company up-to-date and accurate. Furnishing false data on any contract or application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
The resale of Company’s products and services is not permitted, unless specifically permitted and documented in a written agreement.
Facilitating a violation of the AUP: Software, Services, programs, activities, and advertisements that promote, enable, or facilitate any activity that is prohibited within this document, including Spam (in direct violation of the U.S. CAN-SPAM Act of 2003), denial of service attacks, compromise of other systems or attempts to compromise other systems are ALL considered to be violations of the AUP.
The initial term of this Agreement shall be as set forth in the Service Request Form and/or Master Services Agreement, and/or online sign-up/web forms (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew.
ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE OPTIZMO TECHNOLOGIES, LLC TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD, WHERE APPLICABLE, FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELED BY EITHER PARTY AS PROVIDED IN THIS SECTION.
The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
This Agreement may be terminated:
- by Customer by giving Company thirty (30) days prior written notice,
- by Company in the event of nonpayment by Customer,
- by Company at any time, without notice, if, in Company’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and the related agreements, AUP, or Customer’s use of the Services disrupts or, in Company’s sole and absolute discretion and/or judgment, could disrupt Company’s business operations.
Company reserves the right to cancel service(s) at any time. All applicable fees paid in advance of cancellation will be prorated and refunded by Company to Customer, if Company initiates its right of cancellation and Customer is NOT in violation of these Terms of Service. If cancellation is caused by Customer’s and/or its client’s breach of the Terms of Service, then Customer agrees that no refund is due. Customer understands that Service(s) can be canceled at any time effective the end of the contract or in accordance with these terms.
- General SUPPRESS Service Cancellation
- Customer may cancel their SUPPRESS service at any time, with 30 days written notice of intent to cancel.
- Opt-Out links will remain active for 30 days following the last Opt-Out activity, to ensure the Customer’s email campaigns remain in compliance with The CAN-SPAM Act of 2003.
- Upon the end of the 30-day period, Customer Opt-Out Links will become inoperable.
- See below for information on cancellations of Domains and IP Addresses.
- General ACCESS Service Cancellation
- Customer may cancel their ACCESS service at any time, with 30 days written notice of intent to cancel.
- Domain Cancellation
- Custom Domain Cancellation
- Upon cancellation of a specific domain, or general cancellation of all SUPPRESS services, where Customer has been using a domain registered by Customer with a domain registrar, Customer is responsible for canceling any such domains with their domain registrar(s). Company will have no responsibility for cancelling these domains registered by the Customer.
- Upon termination, either by the Company or Customer, for any reason, the Customer is responsible for deleting his/her host registrations from domain registrar(s) immediately.
- Managed Domain Cancellation
- If Customer has initiated the cancellation of a Managed Domain, Customer must pay the full term of the current billing cycle (month), regardless of the date of the cancellation.
- If an OPTIZMO Managed Domain is cancelled from Customer account (either by Customer or Company) it will remain in the Customer account for a period of 60 days after the end of the current billing cycle.
- Customer will continue to pay the monthly rate during this 60 day period.
- Upon completion of the current billing cycle + 60 day period, the domain will be cancelled by OPTIZMO with the domain registrar.
- IP Address Cancellation
- If an IP Address is cancelled from a Customer account (either by Customer or Company) it will remain active for the rest of the current billing cycle + one month.
- Customer will continue to pay for the rest of the current billing cycle. Upon completion of the current billing cycle, the IP address shall be terminated by OPTIZMO.
- The Company is not responsible for any damages your business may suffer.
- The Company does not make implied or written warranties for any of our services.
- The Company denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Company.
- The Customer will not use its network nor space provided by Company to violate any law. In the event Customer violates existing law, Company shall have the right to terminate all Services set forth in this Agreement. In the event Company is informed by government authorities of inappropriate or illegal use of Company facilities or other networks accessed through Company, The Company may terminate the customer’s service.
- Company will cooperate fully with investigations of violations of systems or network security at other sites.
- Company will cooperate with law enforcement authorities in the investigation of possible criminal violations.
- Customers who violate systems and/or network security may incur criminal or civil liability.