Terms of Service

Ometrics LLC
Last revised January  10, 2020

 

This page explains the Terms of Services for Ometrics(R) website (“Website”) and online service of Ometrics LLC (“Ometrics”) by which you may use our online services, website, and software provided on or in connection with the service (collectively the “Service”, “Services”). By accessing or using the Service, including by embedding our code or scripts on your site or software application, you signify that you have read, understood, and agree to be bound by this Terms of Service Agreement (“Agreement”), and to the collection and use of your information as set forth in the Ometrics Privacy Policy, whether or not you are a registered user of our Service.

 

Ometrics may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement, we will update the “last revised” date at the top of this page. It is your responsibility to perodically check the Terms of Service for the lastest updates. Ometrics may or may not contact you directly when changes are made. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service. If you are using embedded code you must delete it from your software, website or application. This Agreement applies to all visitors, users, members, customers (Customer, Customers) and others who access the Service (“Users”).

 

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

 

1. Use of Our Service

 

Ometrics provides a service that measures and gathers user data to improve usability and conversion rate optimization on web sites and or other software applications. Ometrics gathers user information by gathering metrics on the users behavior and or prompting for feedback.

 

A. Eligibility
You may use the Service only if you can form a binding contract with Ometrics, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Ometrics.

 

B. Member Accounts
You will need to register with Ometrics and create an account. Your account gives you access to the services and functionality that we may establish, add new services and maintain from time to time and in our sole discretion.

 

You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Ometrics immediately of any breach of security or unauthorized use of your account. Ometrics will not be liable for any losses caused by any unauthorized use of your account.

 

You may control your User profile and how you interact with the Service by changing the settings when logged into your Account. By providing Ometrics your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences. Opting out may prevent you from receiving email messages regarding offers and marketing information but will not prevent services related emails such as site updates, billing and other service related information.

 

If you use any Ometrics Services you are responsible for maintaining the security of your account and any code and or scripts, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the Service. You must not describe or assign keywords to any Services such as in a survey or A/B test in a misleading or unlawful manner, including in a manner intended to trade on the name, including trademarked names, or reputation of others, and Ometrics may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Ometrics liability. You must immediately notify Ometrics of any unauthorized uses of the Service, your account or any other breaches of security. Ometrics will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

 

C. Responsibility of Contributors
If you operate any Services, comment on a survey, fill out a form, post material to the Website and or blog, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, Content), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, an video file, a multimedia presentation or computer software. By making Content available, you represent and warrant that:

 

• the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
• if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
• you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
• the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
• the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
• the Content is not libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
• your use of Services is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
• your use of Services is not named in a manner that misleads your readers into thinking that you are another person or company. For example, the name you enter in a survey or form is not the name of a person other than yourself or company other than your own; and
• you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Ometrics or otherwise.

 

By submitting Content to Ometrics for inclusion on your Website, you grant Ometrics a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your use of Services. If you delete Content, Ometrics will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

 

Without limiting any of those representations or warranties, Ometrics has the right (though not the obligation) to, in Ometrics sole discretion (i) refuse or remove any content that, in Ometrics reasonable opinion, violates any Ometrics policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Ometrics sole discretion. Ometrics will have no obligation to provide a refund of any amounts previously paid.

 

D. Responsibility of Website Visitors
Ometrics has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, Ometrics does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Ometrics disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

 

E. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Ometrics servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.

 

We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability if in our sole determination you violate any provision of this Agreement.

 

2. Paid Services

 

A. Billing Policies.
Certain aspects of the Service may be provided for a subscription fee or other charge. If you elect to use paid aspects of the Service, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges, posted or linked here. Ometrics may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion.

 

B. Refunds
No Refunds. In the event you cancel your subscription, you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.

 

C. Subscription Terms
You acknowledge and agree that you shall be responsible for paying all fees due for the full term of your subscription, whether or not you cancel such subscription prior to the end of such term. You further acknowledge and agree that the term of your subscription shall automatically renew for additional successive terms equal to the period of your initial term, unless you provide Ometrics with notice of your intent not to renew your subscription at least sixty (60) days prior to the end of the then-current subscription term.

 

C. Usage Terms
You acknowledge that fees based on usage (“Usage Fees”) cannot be determined or predicted on a monthly basis because they are based on your site or applications user traffic. You further acknowledge and agree that the term of your Usage Fees shall automatically be charged monthly.

 

D. Upgrade and Downgrading a Payment Plan
You Acknowledge that you may upgrade your payment plan at any time. You further acknowledge and agree that if you downgrade your plan you will not receive a refund. The remaining balance in your account will go towards the lower plan invoice.

 

E. Payment Information; Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You shall pay all applicable Subscription fees, Usage fees, and including any income, sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Ometrics by any authority in connection with or arising from the Service and/or this Agreement, excluding taxes based upon Ometrics net income and taxes by the State you are incorprated in or do business in. You shall pay each invoice issued by Ometrics by the applicable due date and in the currency specified by Ometrics. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.

 

F. CREDIT CARD AUTHORIZATION
The Customer authorize to bind the card holder set forth in the online registration to these Terms of Service, including these credit card terms.

 

Customer hereby authorizes Ometrics to withdraw funds (“debits”) to satisfy Ometrics Subscription fees and Usage fees from your credit card account (“Account”) provided during online registration. Customer acknowledges that charges accumulated over the course of a month will be debited from the Account by approximately the twenty fifth (25th) day of the month.

 

Customer hereby acknowledges that these terms regarding credit card authorization shall apply to any future credit cards Vender (or its agents) may provide for this account.

 

Customer hereby further acknowledges that Ometrics will suffer irreparable harm should Vender initiate a chargeback to the Account and that monetary damages will be inadequate to compensate Ometrics for such harm should it occur. Accordingly, Ometrics shall be entitled to injunctive or other equitable relief preventing chargebacks without the necessity of proving actual damages or posting a bond. Should Customer attempt a chargeback for Services received from Ometrics, Ometrics may immediately suspend the Services provided, terminate these Terms of Service, and may pursue full legal recourse against the Customer to recoup any and all losses associated therewith.

 

Customer acknowledge and agree that Ometrics has the right to suspend and or delete an account including all Customer Data if there is a payment failure.

 

The failure of either party to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If a court of competent jurisdiction declares any provision of these Terms of Service to be invalid or unenforceable, the remainder of these Terms of Service will continue in full force and effect. These Terms of Service shall be construed in accordance with the laws of the State of Colorado, without giving effect to its conflict of laws provisions. You and Ometrics agree to submit to the exclusive jurisdiction of the state courts located in Jefferson County, Colorado and the federal courts located in the Denver Colorado, with respect to disputes hereunder.

 

3. License Grant; Restrictions

 

A. Grant
Subject to the terms and conditions of this Agreement (including any restrictions on any applicable Authorization Form), you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, freely revocable, license to use the Service solely for the purpose of improving usability, conversion rate optimization, surveying users and or gathering information on websites or other software applications. You may only integrate the Service on any web sites or software applications owned, operated or controlled by you (Customer Sites and Applications). Ometrics reserves all rights not expressly granted herein in the Service and the Ometrics Content (as defined in Section 4).

 

B. Restrictions
Except as expressly permitted under Section 2(A), you agree not to use, copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software underlying the Service or any part thereof, unless this is expressly permitted or required by law, or unless authorized by Ometrics in writing.

 

 

 

4. Ownership Rights

 

A. Ometrics Proprietary Rights
As between you and Ometrics, Ometrics and its licensors exclusively own all right, title and interest in and to the Service, including without limitation any improvements thereto, Updates, and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the “Ometrics Content”), and all Intellectual Property Rights (as defined below) related thereto and derivative works of the foregoing. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights (as defined below), and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Ometrics Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.

 

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

 

Content on the Website
Any opinions expressed by the contributors, authors and moderators who post content to the Website are the personal opinions of the authors, not of Ometrics, whether or not the authors are employees or contractors of Ometrics. The Website and all materials published and/or distributed on or through the Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by Ometrics or any other party.

 

B. Your Proprietary Rights

 

• Customer Sites. As between you and Ometrics and subject to Section 3(C), you own all right, title and interest in and to the Customer Sites and Applications and all data and content embedded thereon or contained therein (excluding the Service), and any Intellectual Property Rights for any of the foregoing embodied therein.
• Customer Data. Customer Data (as defined herein) will be and will remain your property. Customer Data means any profile information, data, and other content or information provided by you, directly or indirectly, to Ometrics in connection with your use of the Service, including without limitation such data, content, and information related to your business or the users of the Customer Sites. Ometrics shall only use Customer Data in accordance with Ometrics Privacy Policy. For the avoidance of doubt, this includes without limitation, using Customer Data in aggregate form to create reports, provide and improve the Service, marketing the Service, and provide better functionality to our customers.

 

C. Licenses to Ometrics

 

• Customer Data. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Ometrics, a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, develop, transmit, distribute, modify, reproduce, publically display, and create derivative works of any Customer Data for the purposes of (a) providing the Services (b) developing, maintaining, supporting, and improving the Services so long as any Customer Data relating to end users of the Customer Sites and Applications is not reasonably identifiable with an individual; (c) marketing, promoting and advertising the Service so long as any Customer Data relating to end users of the Customer Sites and Applicationsis not reasonably identifiable with an individual; and (d) creating and distributing reports so long as any Customer Data relating to end users of the Customer Sites and Applications is not reasonably identifiable with an individual.
• Name and Logo. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Ometrics, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute your name, logo, or any other identifying words or marks used by and/or associated with you to identify you (Your Marks), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service to identify you as a customer of Ometrics. Unless otherwise approved in writing by you, we will not remove, obscure, or alter any of Your Marks. Ometrics acknowledges that all goodwill generated through our use of any of Your Marks will inure to your benefit and we hereby assign and will assign to you any and all goodwill generated through our use of any of Your Marks, without any payment or other consideration of any kind to us.
• Marketing. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Ometrics, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, publish, edit, and distribute any of Your Marks, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, to identify you as a customer of Ometrics in connection with any marketing, promotion, or advertising of the Service.
• Customer References. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Ometrics, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, publish, edit, and distribute any of Your Marks, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, to identify you as a customer of Ometrics in connection with providing customer references regarding the Service to other Users.
• Case Studies. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Ometrics, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, publish, edit, and distribute any of Your Marks, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with identifying you in case studies relating to your use of the Service.
• Feedback and Improvements. You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Ometrics under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Ometrics does not waive any rights to use similar or related ideas previously known to Ometrics, or developed by its employees, or obtained from sources other than you.

 

5. Consent to the Collection and Use of Customer Data; Security

 

A. Consent to Collection and Use of Customer Data
In connection with any Customer Data, you hereby represent and warrant that (a) any personally identifiable information, including without limitation if such information is in aggregate form, about your end users that you provide to Ometrics, directly or indirectly, hereunder was, is, and will be collected with the informed consent of such end users, (b) you have obtained all necessary rights, releases, and permissions to provide such Customer Data to Ometrics, and (c) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies.

 

Ometrics takes no responsibility and assumes no liability for any Customer Data that you or any other User or third party provides, posts, publishes or transmits over the Service. You shall be solely responsible for Customer Data and the consequences of using, disclosing, or transmitting it, and you agree that Ometrics is only acting as a passive conduit.

 

B. Security
Ometrics has implemented commercially reasonable and industry standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, the Customer acknowledge that Ometrics cannot guarantee that unauthorized third parties will never be able to defeat those measures. Furthermore the Customer has implemented best practices with regards to Cross-site Scripting attacks and CORS implementation.

 

C. Data Prossesing
All processing by Ometrics of the Personal Data and other data provided by the customer shall be in accordance with applicable laws. Ometrics’s processing of personal data on behalf of the Customer shall therefore only be done in order to provide Ometrics Services and shall be subject to the Customer’s written instructions.

D. Data Processing Agreement.
The Customer may optionally enter into an additional Data Processing Agreement (“DPA”) with Ometrics relating to the processing of Personal Data and Data Protection Laws. Information can be found here: GDPR

 

6. Representations and Warranties

 

Each party warrants and represents that such party has full right, power, and authority to enter into and perform this Agreement without the consent of any third party. You hereby represent, warrant, and covenant to use the Service in accordance with all applicable laws. Ometrics represents, warrants and covenants that Ometrics will use commercially reasonable efforts to prevent the Service from introducing into your computer systems, databases, or software, any virus or any other contaminants that may be used to access, alter, delete, disrupt, damage, disable, inhibit, or shut down your computer systems, databases, or software, in a manner other than in accordance with the terms of this Agreement. However, you acknowledge that Ometrics cannot guarantee that unauthorized third parties will never be able to defeat those measures.

 

7. DMCA Notice

 

Since we respect artist and content owner rights, it is Ometrics policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (DMCA).

 

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Ometrics copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

 

1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Ometrics to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

 

The above information must be submitted to the following DMCA Agent:

 

Attn: DMCA Notice
Ometrics LLC
Address: PO Box 2095, Evergreen CO, 80439
Telephone: (800)-700-8077
Email: [email protected]

 

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

 

8. Indemnity

 

Each party will indemnify and hold harmless the other party and its successors and their respective affiliates, officers, directors and employees against and from all third party: claims, actions, demands, damages, liability and expenses (including, without limitation, court costs and reasonable attorneys’ fees) (together, Claims) arising out of or in connection with the indemnifying party’s breach or alleged breach of Sections 5(A) or 6 of this Agreement. You will further indemnify and hold harmless Ometrics and our successors and our affiliates, officers, directors and employees against and from all Claims arising out of or in connection with the Customer Sites and Applications, including without limitation any violation or alleged violation of any law or third-party rights by the Customer Sites and Applications or any data, content, or information contained therein or transferred thereby. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity (provided however, the failure to give timely notice shall not relieve the indemnifying party of its obligations under this section except to the extent that such untimely notice materially impairs the ability of the indemnifying party to defend); (ii) granting complete control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such Claim. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect to which indemnified party is or could be indemnified hereunder unless such settlement either (a) includes an unconditional release of the indemnified party from all liability on all Claims that are the subject matter of such proceeding or (b) is consented to in writing by the indemnified party (which consent shall not be unreasonably withheld).

 

9. No Warranty

 

EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OMETRICS OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, OMETRICS, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR CODE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.

 

OMETRICS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE OMETRICS SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND OMETRICS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

 

10. Limitation of Liability

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OMETRICS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL OMETRICS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM MALICIOUS ACTIVITY, HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OMETRICS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE. IN NO EVENT SHALL OMETRICS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNTS PAID BY YOU TO OMETRICS UNDER THIS AGREEMENT DURING THE MOST RECENT TWELVE (12) MONTHS.

 

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF OMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from facilities in the United States. Ometrics makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

 

11. Confidentiality

 

Confidential Information of either party will mean information disclosed to or learned by the receiving party concerning the disclosing party’s business, customers, products, proposed products, plans, inventions, processes and techniques, which is designated as Confidential, Proprietary or some similar designation or should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach on the part of the receiving party; (ii) the receiving party obtains from a third party rightfully, without breach of nondisclosure obligations and without restriction on disclosure; or (iii) the disclosing party regularly provides to others without restriction on disclosure. Except as explicitly authorized in writing by this Agreement or otherwise, each party will: (a) not use, for its own benefit or the benefit of any third party, the other party’s Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect its own Confidential Information of similar importance, to protect the other party’s Confidential Information from unauthorized use, disclosure and publication. Both parties acknowledge that the breach of this Section 11 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by the receiving party, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.Within five (5) days after termination of this Agreement, each receiving party shall destroy or deliver to the disclosing party, at the disclosing party’s option, all materials in receiving party’s possession or control that contain or disclose any Confidential Information of the disclosing party. Service Data (Section 3) on Omertrics servers is not considered Confidential.

 

12. Termination

 

Ometrics, in its sole discretion, may terminate or suspend your account at any time if, in Ometrics sole discretion, you violate any term or provision of this Agreement without prior notice or liability to you. Upon termination of your account, your right to use the Service will immediately cease and all amounts due under Section 4 shall become immediately due and payable. Sections 2 (to the extent not satisfied), 4, 5, and 8 -14 shall survive any termination or expiration of this Agreement. Upon termination of this Agreement for any reason, you shall cease all use of the Service and you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service code and any the data, and shall so certify, if requested, to Ometrics that such actions have occurred.

 

13. Assignment

 

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Ometrics without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

 

14. General

 

A. Independent Contractors
Neither party has the ability to bind the other party to any agreements or other obligations and will not attempt to do so. Ometrics and you are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.

 

B. Use of Your Name
You agree that Ometrics may use your name, logo, or any other identifying words or marks used by and/or associated with you to identify you as a customer of Ometrics, for use in connection with marketing, promoting, and advertising the Service, for use in customer references and case studies involving you, and for use in other activities related to Ometrics business.

 

C. Governing Law
You agree that: (i) the Service shall be deemed solely based in Colorado; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Ometrics, either specific or general, in jurisdictions other than Colorado. This Agreement shall be governed by the internal substantive laws of the State of Colorado, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.You agree to submit to the personal jurisdiction of a state court located in Jefferson County, Colorado or the United States District Court Denver Colorado, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our Intellectual Property Rights, as set forth in the Arbitration provision below.

 

D. Arbitration
In the unlikely event that Ometrics has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Ometrics claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, Actions), by binding arbitration by the American Arbitration Association (AAA) in Jefferson County, Colorado under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Ometrics from seeking injunctive or other equitable relief from the courts as necessary to protect any of Ometrics Intellectual Property Rights or other proprietary interests. ALL ACTIONS MUST BE BROUGHT IN THE PARTIES INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND OMETRICS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

E. Notification Procedures
All notices from you to Ometrics must be given in writing and sent by registered or certified mail (postage prepaid and return receipt requested), by hand or messenger delivery, by overnight delivery service, by electronic mail, to Ometrics addresses provided on the Service. Any notice or report delivered in accordance with this Section will be deemed given on the date actually delivered; provided that any notice or report deemed given or due on a Saturday, Sunday or legal holiday will be deemed given or due on the next business day. Ometrics may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Ometrics in our sole discretion. Ometrics reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Ometrics is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add [email protected] to your email address book to help ensure you receive email notifications from us.

 

F. Entire Agreement/Severability
This Agreement, together with any Authorization Forms, amendments and any additional agreements you may enter into with Ometrics in connection with the Service, shall constitute the entire agreement between you and Ometrics concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

 

G. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Ometrics failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.