1. Use of the Services and Octi Properties.
The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “Octi Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Octi grants you a limited license to reproduce portions of Octi Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Octi in a separate license, your right to use any Octi Properties is subject to the Terms.
1.1 Application License.
Subject to your compliance with the Terms, Octi grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2 Octi Software.
Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Octi provide you with any tangible copy of our Software. Octi shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Octi grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
You understand that Octi Properties are evolving. As a result, Octi may require you to accept updates to Octi Properties that you have installed on your computer or mobile device. You acknowledge and agree that Octi may update Octi Properties with or without notifying you. You may need to update third-party software from time to time in order to use Octi Properties.
1.4 Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Octi Properties or any portion of Octi Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Octi Properties (including images, text, page layout or form) of Octi; (c) you shall not use any metatags or other “hidden text” using Octi’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Octi Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Octi Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Octi Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Octi Properties. Any future release, update or other addition to Octi Properties shall be subject to the Terms. Octi, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Octi Properties terminates the licenses granted by Octi pursuant to the Terms.
1.5 Third-Party Materials.
As a part of Octi Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Octi to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account.
In order to access certain features of Octi Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account through the Services (“Account”).
2.2 Registration Data.
In registering an account through the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Octi Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Octi Properties by minors. You may not share your Account or password with anyone. If you provide any information that is untrue, inaccurate, not current or incomplete, or Octi has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Octi has the right to suspend or terminate your Account and refuse any and all current or future use of Octi Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Octi reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Octi Properties if you have been previously removed by Octi, or if you have been previously banned from any of Octi Properties.
2.3 Your Account.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Octi.
2.4 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Octi Properties, including but not limited to, a mobile device that is suitable to connect with and use Octi Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Octi Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Octi will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages by replying “STOP” or changing the settings on your device.
3 Responsibility for Content.
3.1 Types of Content.
You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Octi, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Octi Properties (“Your Content”), and that you and other Users of Octi Properties, and not Octi, are similarly responsible for all Content they Make Available through Octi Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content.
You acknowledge that Octi has no obligation to pre-screen Content (including, but not limited to, User Content), although Octi reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Octi pre-screens, refuses or removes any Content, you acknowledge that Octi will do so for Octi’s benefit, not yours. Without limiting the foregoing, Octi shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed to by Octi in writing elsewhere, Octi has no obligation to store any of Your Content that you Make Available on Octi Properties. Octi has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Octi Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Octi retains the right to create reasonable limits on Octi’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Octi in its sole discretion.
4.1 Octi Properties.
Except with respect to Your Content and User Content, you agree that Octi and its suppliers own all rights, title and interest in Octi Properties (including but not limited to, any filters, virtual reality overlays and other editing related content provided by Octi in connection with the Services, computer code, themes, objects, characters, character names, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or made available on the Website, the Services, or Octi Properties.
Graphics, logos, service marks and trade names used on or in connection with Octi Properties or in connection with the Services are the trademarks of Octi and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Octi Properties are the property of their respective owners.
4.3 Other Content.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Octi Properties.
4.4 Your Content.
Octi does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Octi Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content.
Subject to any applicable account settings that you select, you grant Octi a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Octi Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Octi Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Octi, are responsible for all of Your Content that you Make Available on or in Octi Properties.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Octi Properties, you hereby expressly permit Octi to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7 Your Profile.
Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Octi through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Octi has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Octi a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Octi Properties.
5. Acceptable Use Policy.
5.1 You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party; (d) that harms minors in any way; (e) impersonates any person or entity, including but not limited to, Octi personnel; (f) that falsifies or deletes any author attributions, legal, or other proper notices or proprietary designations or labels of the origin or source of Content that is uploaded, downloaded, published, posted, distributed or disseminated; (g) make available any Content that belongs to another person or entity or that you otherwise do not have the right to make available under any law or under contractual or fiduciary relationships; (h) make available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary or contractual right; make available any private or confidential information through the Services, including without limitation, credit card information, social security or national identity numbers; or (i) submit or create unwanted messages, comments, likes or other harassing or commercial communications to users.
5.2 In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.
Octi may, but is not obligated to, monitor or review Octi Properties and Content at any time. Without limiting the foregoing, Octi shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Octi does not generally monitor user activity occurring in connection with Octi Properties or Content, if Octi becomes aware of any possible violations by you of any provision of the Terms, Octi reserves the right to investigate such violations, and Octi may, at its sole discretion, immediately terminate your license to use Octi Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users.
7.1 User Responsibility.
You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Octi reserves the right, but has no obligation, to intercede in such disputes. You agree that Octi will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users.
Octi Properties may contain User Content provided by other Users. Octi is not responsible for and does not control User Content. Octi has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8. Third-Party Services
8.1 Access Through a SNS.
Certain features and functions of the Services allow you to access the Octi Properties through a third-party social networking service (“SNS”), such as Facebook. If you access the Octi Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with your SNS account (“Third Party Account”), by allowing Octi to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Octi access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Octi to pay any fees or making Octi subject to any usage limitations imposed by such third-party service providers. By granting Octi access to any Third-Party Accounts, you understand that Octi may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Octi Properties (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Octi Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Octi Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Octi’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Octi Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND OCTI DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Octi makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Octi is not responsible for any SNS Content.
8.2 Third-Party Websites, Applications & Ads.
Octi Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties ( “Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Octi Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Octi. Octi is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Octi provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.3 App Stores.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, i.e., the Apple App Store (“App Store”). You acknowledge that the Terms are between you and Octi and not with the App Store. Octi, not the App Store, is solely responsible for Octi Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Octi Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Octi Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
You agree to indemnify and hold Octi, its
parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Octi Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Octi Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Octi reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Octi in asserting any available defenses. This provision does not require you to indemnify any of the Octi Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Octi Properties.
10. Disclaimer of Warranties and Conditions.
10.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OCTI PROPERTIES IS AT YOUR SOLE RISK, AND OCTI PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. OCTI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
A. OCTI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) OCTI PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF OCTI PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF OCTI PROPERTIES WILL BE ACCURATE OR RELIABLE.
B. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OCTI PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OCTI PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
C. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. OCTI MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OCTI OR THROUGH OCTI PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
E. From time to time, Octi may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Octi’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.2 No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT OCTI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OCTI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for Conduct of Other Users.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OCTI PROPERTIES. YOU UNDERSTAND THAT OCTI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF OCTI PROPERTIES.
11. Limitation of Liability.
11.1 Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL OCTI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OCTI PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT OCTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF OCTI PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE OCTI PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH OCTI PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OCTI PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO OCTI PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A OCTI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A OCTI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A OCTI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability.
UNDER NO CIRCUMSTANCES WILL OCTI PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Octi by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A OCTI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A OCTI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A OCTI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 User Content.
11.4 Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OCTI AND YOU.
12. Procedure for Making Claims of Copyright Infringement.
It is Octi’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Octi by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Octi Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Octi Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Octi’s Copyright Agent for notice of claims of copyright infringement is as follows: Melissa Kaspers, SVP, Product & Operations, 6600 Sunset Boulevard, Hollywood, CA 90028.
If Octi becomes aware of any possible violations by you of the Terms, Octi reserves the right to investigate such violations. If, as a result of the investigation, Octi believes that criminal activity has occurred, Octi reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Octi is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Octi Properties, including Your Content, in Octi’s possession in connection with your use of Octi Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Octi, its Users or the public, and all enforcement or other government officials, as Octi in its sole discretion believes to be necessary or appropriate.
In the event that Octi determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Octi Properties, Octi reserves the right to:
A. Warn you via e-mail (to any e-mail address you have provided to Octi) that you have violated the Terms;
B. Delete any of Your Content provided by you or your agent(s) to Octi Properties;
C. Discontinue your registration(s) with the any of Octi Properties, including any Services or any Octi community;
D. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
E. Pursue any other action which Octi deems to be appropriate.
14 Term and Termination.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Octi Properties, unless terminated earlier in accordance with the Terms.
14.2 Prior Use.
Notwithstanding the foregoing, if you used Octi Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Octi Properties (whichever is earlier) and will remain in full force and effect while you use Octi Properties, unless earlier terminated in accordance with the Terms.
14.3 Termination of Services by You.
If you want to terminate the Services provided by Octi, you may do so by (a) notifying Octi at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Octi's address set forth below.
14.4 Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Octi will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.5 No Subsequent Registration.
If your registration(s) with or ability to access Octi Properties, or any other Octi community is discontinued by Octi due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Octi Properties or any Octi community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Octi Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Octi reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Octi and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Octi, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Octi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.IF YOU AGREE TO ARBITRATION WITH OCTI, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST OCTI ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE OCTI IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
15.2 Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Drew Martin, 6600 Sunset Boulevard, Hollywood, CA 90028. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Octi will pay them for you. In addition, Octi will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Octi will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Octi. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial.
YOU AND OCTI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Octi are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in accordance with Sections 17.6 and 17.7.
15.6 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Octi, 6600 Sunset Boulevard, Hollywood, CA 90028, [email protected]
, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Octi username (if any), the email address you used to set up your Octi account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Octi.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Octi makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Octi.
16 General Provisions.
16.1 Electronic Communications.
The communications between you and Octi use electronic means, whether you visit Octi Properties or send Octi e-mails, or whether Octi posts notices on Octi Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Octi in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Octi provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Octi Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Octi Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Octi Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Octi Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Octi’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure.
Octi shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.5 Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Octi Properties, please contact us at: [email protected]
We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.16.6 Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Octi agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
16.7 Governing Law.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Where Octi requires that you provide an e-mail address, you are responsible for providing Octi with your most current e-mail address. In the event that the last e-mail address you provided to Octi is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Octi’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Octi at the following address: 6600 Sunset Boulevard, Hollywood, CA 90028. Such notice shall be deemed given when received by Octi by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11 Export Control.
You may not use, export, import, or transfer Octi Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Octi Properties, and any other applicable laws. In particular, but without limitation, Octi Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Octi Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Octi Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Octi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Octi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.12 Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.13 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.