Use of the Website
By accessing the website, you warrant and represent to the website owner that you are legally entitled to do so and to make use of information made available via the website. Use of the Octomize, Inc. Websites for any public or commercial purpose (including, without limitation, on another site or through a networked computer environment) is strictly prohibited. If you make copies of any of the Materials, you must retain on any such copies all copyright and other proprietary notices contained in the original Materials. You may not modify, publicly display, publicly perform, or distribute the Materials. Any unauthorized use of the Octomize, Inc. Website may violate copyright, trademark, and other laws.
You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the Octomize, Inc. Website and for paying all charges related thereto. When you register to open an account anywhere on the Octomize, Inc. Website, or when you contact Octomize, Inc. through the Octomize, Inc. Websites for the purpose of receiving products or services, Octomize, Inc. may collect certain personal information about you. Octomize, Inc.'s use of such information is governed by the provisions of the Octomize, Inc. Privacy Statement for the Site. You agree to provide true, accurate, current, and complete information (and, for as long as you continue to use your Octomize, Inc. Websites account, to update such information to keep it true, accurate, current, and complete). You are responsible for maintaining the confidentiality of your Octomize, Inc. Website password and you are solely responsible for all activities that occur under your password. You agree to notify Octomize, Inc. immediately of any unauthorized use of your password or any other breach of security related to the Octomize, Inc. Website. Octomize, Inc. reserves the right to require you to change your password if Octomize, Inc. believes that your password no longer is secure. Octomize is not liable for any loss incurred by you resulting from another's use of your password or account with or without your knowledge.
Octomize, Inc. may terminate, suspend, or modify your registration with, or access to, all or part of the Octomize, Inc. Website, without notice, at any time and for any reason. You may discontinue your participation in and access to the Octomize, Inc. Website at any time. If you breach any of these Terms, your authorization to use the Octomize, Inc. Website automatically terminates and you must immediately destroy any downloaded or printed Materials (and any copies thereof). Octomize shall not be liable to you or any third party for termination of the Service or use of the Products. Upon expiration or termination for any reason, you are no longer authorized to use the Products. All disclaimers, limitations of warranties and damages, and confidential commitments set forth in these Terms or otherwise existing at law survive any termination, expiration or rescission of these Terms.
THE Octomize, Inc. WEBSITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY, SUITABILITY, CAPACITY AND PERFORMANCE OF THE Octomize, Inc. WEBSITE IS WITH YOU. SHOULD THE MATERIALS OR SERVICES PROVE DEFECTIVE, YOU, AND NOT Octomize, Inc., ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING AND REPAIR. Octomize, Inc. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE Octomize, Inc. WEBSITE (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Octomize, Inc. MAKES NO WARRANTY THAT THE Octomize, Inc. WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE Octomize, Inc. WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE Octomize, Inc. WEBSITE WILL BE CORRECTED. Octomize, Inc. MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Octomize, Inc. WEBSITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE Octomize, Inc. WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE Octomize, Inc. WEBSITE OR OTHER AFFILIATED COMPANIES, OR ITS OR THEIR SUPPLIERS (OR THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OF ANY SUCH ENTITIES) SHALL CREATE ANY WARRANTY. Octomize, Inc. DISCLAIMS ALL EQUITABLE INDEMNITIES.
LIMITATION OF LIABILITY
UNDER NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL Octomize, Inc. OR ITS CONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES OR ITS SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS, GOODWILL, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, THIS SITE, OR THE USE OR INABILITY TO USE THE MATERIALS, OR ANY DATA SUPPLIED THEREWITH, EVEN IF OCTOMIZE INC. OR AN OCTOMIZE INC. REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Because Octomize Inc. is not involved in the actual direct transaction between you and your Customer, in the event that you have a dispute with one or more Customers, you release Octomize Inc. (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitations or exclusions may not apply to you.
External links may be provided for your convenience, but they are beyond the control of the website owner and no representation is made as to their content. Use or reliance on any external links and the content thereon provided is at your own risk.
The trademarks, names, logos and service marks (collectively "trademarks") displayed on this website are registered and unregistered trademarks of the website owner. Nothing contained on this website should be construed as granting any license or right to use any trademark without the prior written permission of Octomize, Inc..
Access to Password-Protected or Secure Areas
Octomize, Inc. may restrict some areas of the website to authorized users only. Access to and use of areas of the website that are password-protected and/or secure is restricted to such authorized users only. Unauthorized individuals attempting to access these areas may be subject to civil liability and criminal penalties.
Fees and Renewals
If you choose a Month-to-Month subscription, the payment can only be made by Credit Card, PayPal charge or a direct debit. Payment of the subscription fee by credit card will be by a preauthorized credit card charge and your subscription will automatically renew each calendar month unless you or Octomize Inc. give written or email notice of non-renewal at least 10 days prior to the expiration of your calendar monthly subscription. Your credit card will be charged the monthly fee for each month that your monthly subscription is in effect.
If you choose an Annual subscription and your payment is by credit card, PayPal charge or direct debit, your subscription will automatically renew at the beginning of each subsequent anniversary year unless you or Octomize Inc. give written or email notice of non-renewal at least 10 days prior to the expiration of your current year subscription. Upon any annual renewal, the payment arrangements in place for the prior subscription year shall remain in place, unless you and Octomize Inc. agree otherwise.
Octomize Inc. reserves the right to change the fees upon renewal with at least thirty (30) days prior notice to you, which notice may be provided by e-mail.
Notwithstanding the foregoing provisions of these terms, your subscription to the free trial version of the service does not require the payment of a subscription fee.
Unless specifically provided otherwise herein, payment of all fees are due and payable to Octomize Inc. without demand, invoicing or notice before the commencement of the period to which those fees apply. Octomize Inc. fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Octomize Inc's income.
If payment of fees is not received for any reason, Octomize Inc. reserves the right to suspend your access to your Account(s) if the problem cannot be cured within ten (10) business days and terminate your access if the problem cannot be cured within thirty (30) days.
All fees and charges specified are nonrefundable whether or not you actively use the Service. If you elect to discontinue use of the Service no refund will be given for the unused portion of the Initial Term or any renewal term.
All data submitted by you to the Service, whether posted by you, Users, Customers or other third parties, shall remain the sole property of you or such third parties, as applicable, unless specifically notified in advance. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all your Data and Octomize Inc. shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. In the event that you terminate this Agreement (other than by reason of a breach by you), Octomize Inc. will make available to you a file of the your Data within 30 days of termination notice if you so request. Octomize Inc. reserves the right to withhold, remove and/or discard your Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use your Data immediately ceases, and Octomize Inc. shall have no obligation to maintain or forward any of your Data.
Maintenance and Updates
Octomize may update the Products at any time, but is under no obligation to inform you or furnish to you any such updates. These Terms do not grant you any right, license or interest in or to any support, maintenance, improvements, modifications, enhancements or updates to the Products or supporting documentation. To the extent that Octomize supplies any updates to you, such updates will be deemed to be subject to the terms of these Terms unless Octomize indicates otherwise. Octomize Inc. reserves the right to charge fees for any future versions of, or updates to, the Products.
Export Law Assurances
The Products are subject to the United States Export Administration Regulations. No Software or Service may be downloaded, used or exported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods; or (ii) any person or entity on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List or Entity List, or otherwise designated as prohibited from receiving U.S. exports. By subscribing to the Service or using any of the Software, You and the Contracting Party represent and warrant that you and it are not- and are not controlled by - any such person or entity and are not controlled by a national or resident of any such country.
You shall maintain the confidentiality of information that has been provided to you by Octomize Inc. in connection with the use of the Products and that data is not available to the general public on the Octomize Inc. website.
You shall not disclose any such information to anyone except your employees, agents, and consultants on a need-to-know basis and not use Octomize Inc. confidential information for any purpose other than that for which it is disclosed. All confidential information shall remain the sole property of Octomize Inc.
Information considered confidential by Octomize includes, without limitation, information of Octomize relating to (a) matters of a technical nature such as trade secret processes, know-how, data, formulas, inventions specifications and characteristics of products or services planned or being developed (b) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers, product plans, and business concepts, plans or strategies and (c) other information of a similar nature not generally disclosed by Octomize Inc. to the public.
The obligations imposed by these confidentiality terms shall not apply to any information that (a) is proven by you to have been rightfully received from a third party without accompanying use or disclosure restrictions; or (b) is or becomes generally publicly available through no wrongful act of you or any other person or entity with a confidentiality obligation; or (c) is already known to you prior to the date of disclosure as evidenced by documentation bearing a date prior to the date of disclosure; or (d) is approved for release in writing by an authorized representative of Octomize Inc.; or (e) is required to be disclosed pursuant to court order, duly authorized subpoena, or governmental authority.
The confidentiality obligations under these Terms shall survive any termination, expirations, or rescission of these Terms, as well as continue beyond any time in which you were using the Service.
No party shall be liable for any performance failure, delay in performance, or lost data under these Terms (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by (i) failures of Software or other computer programming, (ii) natural weather events, or (iii) any other causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under these Terms, provided that in any such event, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon.
These Terms, together with any additional terms to which you agree when using particular elements of the Octomize, Inc. Website, constitute the entire and exclusive and final statement of the agreement between you and Octomize, Inc. with respect to the subject matter hereof, superseding any prior agreements or negotiations between you and Octomize, Inc. with respect to such subject matter. These Terms and the relationship between you and Octomize, Inc. shall be governed by the laws of the State of California as applied to agreements made, entered into, and performed entirely in California by California residents, notwithstanding your actual place of residence. All lawsuits arising from or relating to these Terms or your use of the Octomize, Inc. Website shall be brought in the Federal or State courts located in Santa Clara County, California, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of Octomize, Inc. to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of Octomize, Inc. and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms shall remain in full force and effect notwithstanding any termination of your use of the Octomize, Inc. Website. These Terms will be interpreted without application of any strict construction in favor of or against you or Octomize, Inc.. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Octomize, Inc. without restriction.
Modifications to these Terms
Octomize, Inc. may, in its sole and absolute discretion, change these Terms from time to time. Octomize, Inc. will post notice of such changes on the applicable website. You are responsible for regularly reviewing the Octomize website to obtain timely notice of changes to these terms. If you object to any such changes, your sole recourse shall be to cease using the Octomize, Inc. Website. Continued use of the Octomize, Inc. Website following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Revised September 14, 2012