Haystax End User License Agreement
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACCESS TO AND USE OF OES’S SERVICES (“SERVICES” or “SERVICE”).
IF YOU REGISTER FOR A TRIAL FOR OES’S SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION AGREEMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. USE OF OES’S SERVICES CONSTITUTES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. “YOU” OR “YOUR” MEANS YOURSELF, THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACCEPTING THIS AGREEMENT, AND AFFILIATES OF THAT COMPANY OR ENTITY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. “AFFILIATE” MEANS ANY ENTITY WHICH DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE SUBJECT ENTITY. “CONTROL,” FOR PURPOSES OF THIS DEFINITION, MEANS DIRECT OR INDIRECT OWNERSHIP OR CONTROL OF MORE THAN 50% OF THE VOTING INTERESTS OF THE SUBJECT ENTITY.
This End User License Agreement was last updated on September 29, 2022. It is effective between You and Octane Enterprise Solutions, LLC, a Delaware limited liability company having an address at 65 Enterprise, Aliso Viejo, California 92656, as of the date You complete the online registration process, agree to the provisions of this Agreement by selecting the “Agree” checkbox, or commence use of Services, which shall be the “Effective Date.”
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST OES ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. USE OF THE SERVICES
1.1 Acceptance of Terms. Octane Enterprise Solutions, LLC (“OES,” “we,” “us,” “our”) provides its services (described below) to You through its website located at www.haystax.ai (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the terms of this Agreement. This Agreement may be changed by OES without notice to You. You expressly waive notice of any such changes and agree to be bound by and subject to the provisions of the most current version of this Agreement. OES urges You to review this Agreement from time to time via the customer login link at www.haystax.ai, or at such other OES websites as may be designated by OES (any of which shall be referred to as the “Website”), to determine whether it has been changed. By completing the online registration process, selecting the “Agree” checkbox, or simply using the Services, You expressly agree to be bound by and subject to all of the provisions of this Agreement. By continuing to use the Website and/or the Services after this Agreement has been changed, You expressly consent to the changes and agree to be bound by them. If You are under 13 years of age, You are not authorized to use the Website or the Services, with or without registering. In addition, if You are under 18 years old, You may use the Website and the Services, with or without registering, only with the approval of Your parent or guardian.
1.2 Description of Services. OES develops, produces, and distributes a software platform (the HaystaxTM platform) that utilizes dynamic startup evaluation rubrics (also referred to as Capital Readiness RubricsTM) to generate analytical data (also referred to as Capital Predict AnalyticsTM) to assist venture studios, incubators, accelerators, venture capitalists, angel groups, and general early stage investors in determining the potential viability of startups. “Services” means the products and services that are made available by OES online via the user login link at www.haystax.ai and/or other Website pages designated by OES, including associated offline components.
In connection with Your use of the Services, OES will provide You with services in the form of online access, through the Website, to Your account (“Your Account”) that contains that contains one or more of a user profile, a startup pitch event, custom startup evaluation criteria, self-assessment data, startup evaluation rubrics, and analytical data. Your Account is a part of the Website.
Access to Your Account will be provided to You through the use of a username and password to be assigned after any applicable fees or amounts have been paid; You have completed the online registration process for access to Your Account; and You have agreed to the provisions of this Agreement. Your Account shall be segregated from any other accounts that OES provides to other users. You may share access to Your Account with other users using administrative tools provided as part of the Website.
1.3 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue, or ten (10) or more days overdue in the case of amounts You have authorized Us to charge to Your credit card, OES may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for users paying by credit card or direct debit whose payment has been declined, OES will give You at least ten (10) days’ prior notice that Your account is overdue, in accordance with Section 5.5 (Notices) for billing notices, before suspending services to You. OES will not exercise Our rights under this Section if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
1.4 Taxes. OES fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If OES has the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, OES is solely responsible for taxes assessable against Us based on Our income, property and employees.
1.5 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
1.6 Termination. OES shall have the right to immediately terminate this Agreement in the event (i) You make any unauthorized use of the Website or the Services (ii) You fail to perform any of Your other obligations under this Agreement and You do not cure such failure within thirty (30) days after OES has provided notice of such failure (iii) OES elects to discontinue the provision of the Website or the Services; or (iv) there has been extended inactivity in Your Account. You shall have the right to terminate this Agreement at any time by providing written notice of termination to OES at the address indicated in this Agreement; however, You shall not be entitled to a refund or proration of any subscription fees. Upon termination of this Agreement, all of the Your rights to access and use Your Account and the Services shall terminate immediately.
1.7 Suspension. Your access and use of the Website and the Services may be restricted, suspended, or terminated by OES without notice in the event OES determines, in OES’s sole discretion, that You have failed to perform any of Your obligations under this Agreement or are engaging in conduct or activities that may otherwise be harmful to it. No refunds will be provided as a result of any such restriction, suspension, or termination.
1.8 Fees. To the extent the Service or any portion thereof is made available for any fee, You will be required to select a payment plan and provide OES information regarding Your credit card or other payment instrument. You represent and warrant to OES that such information is true and that You are authorized to use the payment instrument. You will promptly update Your account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur or of any loss, theft, or unauthorized use of Your payment service account or payment card number. You agree to pay OES the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize OES to bill Your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until You terminate Your account, and You further agree to pay any charges so incurred. If You dispute any charges, You must let OES know within sixty (60) days after the date that OES charges You. We reserve the right to change OES’s prices. If OES does change prices, OES will provide notice of the change on the Website or in email to You, at OES’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes Your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on OES’s net income
2. SOFTWARE AND INTELLECTUAL PROPERTY
2.1 Exclusive Ownership. OES is and shall be the exclusive owner of all right, title, and interest in and to any and all patents, copyrights, trademarks and service marks, trade dress, trade secrets, and all other proprietary rights of any kind whatsoever related to the Services. OES is and shall be the exclusive owner of all right, title, and interest in and to the Website and the Services (including all software, algorithms, materials, items, information, and content contained in or on the Website, or available through the use of the Website or the Services); including without limitation, any and all patents, copyrights, trademarks and service marks, trade dress and “look and feel,” trade secrets, and all other proprietary rights of any kind whatsoever related to the Website and the Services. Use of the Website or the Services does not in any respect whatsoever constitute a grant of any license or other right to use or exploit any of the proprietary rights related to the Website or the Services, except as expressly granted to You in this Agreement.
2.2 Software. OES shall be the exclusive owner of all right, title, and interest in and to the HaystaxTM platform, Capital Readiness RubricsTM, and Capital Predict AnalyticsTM made available to You as part of the Website and the Services; including without limitation, any and all patents, copyrights, trademarks and service marks, trade dress, trade secrets, and all other proprietary rights of any kind whatsoever related to such intellectual property. OES grants You a limited, revocable, non-transferable, non-sublicensable, and non-exclusive license to internally use such intellectual property solely to enable You to use the Services as provided by OES during the Term, and SUCH INTELLECTUAL PROPERTY SHALL BE PROVIDED TO YOU “AS IS, WITH ALL DEFECTS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
2.3 Links. The Services may be linked to other websites on the Internet that are not under the control of or maintained by OES. Additionally, other websites may contain links to the Website. OES does not review or monitor the Websites linked to the Website and are not responsible for the contents of any other Websites. Any link established by OES does not in any respect whatsoever constitute an endorsement of the other websites or create a relationship between OES and the operators of other websites. You acknowledge that OES provides these links to You only as a convenience, and that OES is not responsible for the business practices, content, privacy policies or links displayed on such Websites or products and services offered through such sites to which You may be linked and Your access to these Websites is at Your own risk. OES disclaims any liability with respect to Your use of any other website, and You release OES from any liability related to Your use of any link to another website or Your use of any other website.
2.4 Notifications. You understand and agree that any notifications provided to You through the Website and the Services may be delayed or prevented by a variety of factors. OES will do its best to provide notifications in a timely manner with accurate information. However, OES neither guarantees the delivery nor the accuracy of the content of any notification. You also agree that OES shall not be liable for any delays, failure to deliver, or misdirected delivery of any notification; for any errors in the content of a notification; or for any actions taken or not taken by You or any third party in reliance on a notification.
2.5 Availability and Modifications. OES shall use commercially reasonable efforts to provide the Website and the Services 24 hours a day, 7 days a week. Notwithstanding the foregoing, Your ability to access or use the Website or the Services may from time to time be interrupted, limited, restricted, or prevented as a result of maintenance, upgrades and repairs, problems with the Internet, or the failure of telecommunications links or equipment. OES shall have no liability for Your inability to use the Website. OES may at any time modify the Website, including without limitation, making modifications to appearance, functionality, presentation of data and information, manner of access or use, or the addition or deletion of information or links to other websites.
2.6 Trademarks and Logos. The OES name, the OES logo, the Haystax name, the Haystax logo, the Capital Readiness Rubric name, the Capital Predict Analytics name, and any other product names, logos, labels, depictions, and descriptions associated with the Services and the Website are trademarks of OES or third parties, and no right or license is granted to use the names, logos, depictions or labels. The omission of a copyright or trademark notice on the Services or the Website shall not be interpreted to mean the material is, or cause the material to be, in the public domain. The contents of the Services and the Website, including its “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) and other material are protected under both United States and other applicable copyright, trademark and other laws.
2.7 Third Party Material. Under no circumstances will OES be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that OES does not pre-screen content, but that OES and its designees will have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Website or the Services. Without limiting the foregoing, OES and its designees will have the right to remove any content that violates the terms of this Agreement or is deemed by OES, in our sole discretion, to be otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
2.8 Website And Services Use And Limitations. You shall not:
- Use the Website or the Services for any entity other than You;
- Violate any applicable local, state, national or international statute, regulation, or law;
- Upload, post, use, or otherwise make available any materials, items, information or content (collectively, “Content”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, hateful, obscene, libelous, pornographic, invasive of another’s privacy, or otherwise objectionable;
- Modify, remove, or obscure any proprietary notices contained at the Website or in any screen images or screen captures printed by You;
- Reverse engineer, decipher, decompile, or disassemble any of the technology or software related to the Website or the Services; and You shall not in any other manner attempt to access or learn the source code related to any software used with the Website, or the Services;
- Impersonate or use the identity of any other person or organization, or falsely state or otherwise misrepresent the Your affiliation with any other person or organization;
- Forge headers or otherwise disguise the origin of any Content;
- Engage in any activities or manipulate identifying material to misrepresent the origin of Content;
- Upload, post, use, or otherwise make available any Content that is subject to any disclosure restrictions;
- Upload, post, use, or otherwise make available any Content that infringes or otherwise violates any patent, copyright, trademark or service mark, trade secret, trade dress, or any other proprietary rights;
- Upload, post, use or otherwise make available any unsolicited or unauthorized advertising or promotional materials, including without limitation, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- Upload, post, use or otherwise make available any Content that contains software viruses or any other corrupt computer code, files or programs that impair the use of any computer software, hardware, or telecommunications equipment;
- Disrupt or interfere with the security of, or otherwise cause harm to, the Website or the Services; systems resources; accounts; usernames and passwords; servers; or networks connected to or accessible through the Website, the Services, or any affiliated or linked sites;
- Interfere with or otherwise limit the use of the Website, the Services by other users or OES customers; or collect, compile, or store personal or other information about other users of the Website, the Services, or OES customers;
- Access or attempt to access Your Account or the Services by any means other than the interface provided by OES;
- Reproduce, sell, trade, resell or otherwise commercially exploit any part of the Website or the Services;
- Use any robots, data mining, or similar data collection or extraction methods or technology in connection with the Website or the Services; or
- Use the Website or the Services to provide services to any third party, or for commercial purposes, other than as expressly permitted by this Agreement.
2.9 Copyright Complaints. OES respects the intellectual property of others, and we ask our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, or that Your intellectual property rights have been otherwise violated, You should notify OES of Your infringement claim in accordance with the procedure set forth below.
OES will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to OES’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
Attn: Legal Department
Octane Enterprise Solutions, LLC
Aliso Viejo, California 92656
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that You claim has been infringed;
- a description of where the material that You claim is infringing is located on the Website or the Services, with enough detail that we may find it on the Website or the Services;
- Your address, telephone number, and email address;
- a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If You believe that Your User Content that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in Your User Content, You may send a written counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that You have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, a statement that You consent to the jurisdiction of the federal court located within the Central District of California and a statement that You will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, OES will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, OES has adopted a policy of terminating, in appropriate circumstances and at OES’s sole discretion, users who are deemed to be repeat infringers. OES may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
2.10 Non-GA Services. From time to time OES may invite You to try, at no charge, OES products or services that are not generally available to OES customers (“Non-GA Services“). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. OES may discontinue Non-GA Services at any time in OES sole discretion or may never make them generally available.
3.1 Username and Password. You shall maintain the confidentiality of Your username and password and are fully responsible for all activities that occur in connection with such username and password. You agree to immediately notify OES of any unauthorized use of Your username or password or any other breach of security. OES shall have the right to require You to change Your username or password at any time. OES shall not be liable for any loss or damage arising from Your failure to comply with the provisions of this Section, or arising from the use of Your username or password by another person or organization, either with or without Your knowledge or consent.
3.2 Data in Your Account. Data and information related specifically and only to You through Your Account shall be referred to as “Your Data.” OES shall treat Your Data as confidential information about You, except for any aspects of Your Data that You choose to non-confidentially disclose to other users of the Website or the Services. You hereby grant OES a perpetual, non-transferable, non-sublicensable, fully-paid license to internally use any and all of Your Data collected from You through use of the Website and the Services for purposes of providing recommendations, analysis, reporting, system monitoring, system enhancements, improving the services, and customer support. Additionally, OES owns all metadata associated with Your Data and You grant OES a perpetual, non-transferable, non-sublicensable, fully-paid license to internally use any and all of the metadata associated with Your Data.
3.3 User Content Transmitted Through the Website or the Services. With respect to the content or other materials You upload through the Website or the Services or share with other users or recipients (collectively, “User Content”), You represent and warrant that You own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content You hereby grant and will grant OES and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use Your User Content in connection with the operation of the Website and the Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that OES may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce the terms of this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of OES, its users and the public. You understand that the technical processing and transmission of the Service, including Your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.5 Suggestions. Any and all questions, comments, suggestions, and materials You send to OES are non-confidential and, and OES shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.
4. WARRANTIES AND LIABILITY
4.1 Disclaimer of Warranties. THE WEBSITE AND THE SERVICES ARE PROVIDED TO YOU “AS IS, WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. OES EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES AND THE WEBSITE, AND THE ACCURACY OF THE INFORMATION AND CONTENT AVAILABLE AT THE WEBSITE.
YOUR USE OF, AND ANY RELIANCE UPON, THE SERVICES AND THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY DATA RECEIVED FROM NON-OES APPLICATIONS, AND ADVICE IS AT YOUR OWN RISK. THE SERVICES HAVE NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY OES.
OES EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES THAT (I) THE WEBSITE OR THE SERVICES WILL OPERATE IN AN ERROR‑FREE OR UNINTERRUPTED MANNER; (II) THE WEBSITE AND THE ONLINE SERVER THAT MAKES THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE WEBSITE OR THE SERVICES WILL SATISFY YOUR REQUIREMENTS; (IV) THE RESULTS OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (V); OES WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION, INCLUDING YOUR DATA; OR (VI) ANY ERRORS OR DEFECTS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED. OES DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE WEBSITE OR THE SERVICES WILL SATISFY, OR ENABLE YOU TO SATISFY, THE REQUIREMENTS OF ANY GOVERNMENT AGENCY, ASSOCIATION, OR OTHER ORGANIZATION.
NOTHING IN THIS AGREEMENT OR IN ANY ORAL OR WRITTEN DESCRIPTION OF THE WEBSITE OR THE SERVICES SHALL CONSTITUTE A REPRESENTATION OR WARRANTY WITH RESPECT TO THE WEBSITE OR THE SERVICES.
4.2 No Liability for Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL OES OR ANY THIRD PARTY PROVIDING DATA, MATERIALS, SERVICES OR CONTENT TO THE SERVICE BE LIABLE TO YOU OR ANY OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR CONNECTED WITH THE SERVICE AND THE WEBSITE, INCLUDING BUT NOT LIMITED TO, YOUR USE OF THE SERVICE OR SERVICES OR YOUR INABILITY TO USE THE SERVICE OR ACCESS YOUR ACCOUNT OR ANY DATA, EVEN IF OES HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 Limitation on Liability. OES shall not be liable for any incidental, consequential, indirect, or punitive damages arising out of Your access to, or use of, the Website or the Services. Under no circumstances whatsoever shall OES aggregate liability under this Agreement or resulting from Your use of the Website or the Services exceed the purchase price paid by You for the Services.
THE SERVICES AND THE WEBSITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND THE LIMITATIONS ON LIABILITY SHALL APPLY TO ALL ASPECTS OF THIS AGREEMENT.
4.4 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth in this Section may not apply to You.
4.5 Indemnification. You alone are responsible for Your actions related to the use of the Services, the actions of any person or entity using Your username and/or password, or the actions of any person or entity with whom You have granted access to Your Account. As such, You shall defend, indemnify and hold OES and its Affiliates and their respective officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all claims, demands, lawsuits, costs, damages, liabilities, and expenses (including legal fees) incurred, claimed or alleged, relating in any way to: (i) its breach of the Agreement; (ii) its use of the Website or the Services or the use of the Website or the Services by any person or entity using Your username and/or password or by any person or entity whom You have granted access to Your Account; (iii) the entry, sufficiency, adequacy, accuracy, or timeliness of the Services content or Your Data which forms the basis for making business decisions; and (iv) any claim that Your Data, or the data of any person or entity using its username and/or password, violates the intellectual property rights of any third party or are otherwise defamatory or libelous in the United States.
4.6 User Disputes. You agree that you are solely responsible for your interactions with any other user in connection with the Website and the Services, and OES will have no liability or responsibility with respect thereto. OES reserves the right, but has no obligation, to become involved in any way with disputes between You and any other user of the Website or the Services.
5. CONTRACT PROVISIONS
5.1 Relationship. The provisions of this Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, principal-agent, or other business combination between OES and You. You shall not represent or imply to any third party that this Agreement authorizes You to act as an agent for or on behalf of Us.
5.2 Force Majeure. OES shall not be in breach of this Agreement in the event OES is unable to perform any of its obligations under this Agreement as a result of natural disaster, pandemic, weather, war, terrorism, emergency conditions, labor strife, the inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond its reasonable control.
5.3 Remedies. Injunctive or other equitable relief shall be a remedy available to OES in the event of a breach of any provision of this Agreement by You; but such remedy shall not be the exclusive remedy available to it.
5.4 Limitation on Actions. Regardless of any statute or law to the contrary, any claim or cause of action You may have that arises out of or is related to this Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred.
5.5 Notices. Any notices required or permitted to be given to OES under this Agreement shall be sufficient if in writing and personally delivered, sent by certified mail (or, as applicable the foreign equivalent thereof), or sent by express courier (by nationally or internationally recognized courier) to OES office as listed by the Delaware Secretary of State. Any notices required or permitted to be given to You under this Agreement shall be sufficient if sent by email to the email address provided by You, regular mail at the address provided by You, or notices on the Website or within Your Account.
5.6 Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
5.7 Assignment and Delegation. You shall not, without OES’s prior written consent, assign Your rights or delegate Your duties under this Agreement.
5.8 Waiver. The waiver of any provision or the breach of any provision of this Agreement by OES shall not be effective unless made in writing. Any waiver by OES of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.
5.9 Governing Law and Forum for Disputes. This Agreement shall be governed by the laws of the State of California (without regard to its choice of law principles or rules) in the United States and the applicable laws of the United States. The parties expressly agree that any controversy or disputes arising out of this Agreement, or the breach thereof, will be resolved as described in this Section. The Parties will endeavor to settle such dispute amicably. If the parties shall fail to settle any dispute, such dispute shall be finally settled by binding arbitration conducted in Orange County, California. All arbitration shall be in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the competent jurisdiction to obtain temporary relief pending resolution of the dispute through arbitration. The parties hereby agree that service of any notices in the course of such arbitration at their respective addresses as provided for in this Agreement shall be valid and sufficient. The non-prevailing party shall pay all costs and expenses incurred by the prevailing Party.
5.10 Entire Agreement. The terms and conditions herein constitute the entire agreement between You and OES and governs Your use of the Website and the Services, and supersedes all other prior agreements or understandings, both written and oral, with respect to the subject matter hereof. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining portions shall remain in full force and effect. This Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Paragraph or section headings are solely for convenience and are not intended to affect any of the terms or provisions hereof. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement, and the portion of this Agreement held to be invalid shall be construed and given lawful effect in a manner that will best achieve the intent and objective of such portion of this Agreement. This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement. Any and all notices or communications related to this Agreement must be in English.
5.11 Notice for California Users. Under California Civil Code Section 1789.3, users of the Website or the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Octane Enterprise Solutions, LLC, 65 Enterprise, Aliso Viejo, California 92656, or by email at firstname.lastname@example.org.
5.12 Questions? Concerns? Suggestions? Please contact us at email@example.com to report any violations of the terms of this Agreement or to pose any questions regarding this Agreement, the Website, or the Services.