This Terms of Use governs your relationship with Optimizing LLC, doing business as Optimizing (“Optimizing,” “we,” “our,” or “us”). By accessing or using our website at www.optimizing.com and all other websites, newsletters, social media pages, apps, or other electronic channels owned and maintained by Optimizing (collectively, the “Website”) and by using or purchasing any of our marketing services via the Website or by telephone calls, e-mails, applications, or other electronic communications with us (collectively, the “Services”), our customers and visitors (also “you,” “your,” or “their”) agree to be bound to these Terms of Use (“Terms”).
We reserve the right to modify or discontinue this Website or the Services, or any portion thereof without notice to you or any third party. These Terms may be unilaterally modified from time to time without notice to you. Such modifications by us are effective upon posting to the Website, and your access to or use of the Website or Services at any time constitutes acceptance of the Terms in effect at the time. It is important that you review these Terms every time you use or access the Website or Services.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS WITHOUT MODIFICATION, THEN PLEASE DO NOT ACCESS OR USE THE WEBSITE OR OUR SERVICES. BY VIEWING, CONTINUING TO ACCESS, OR USING ALL OR ANY PART OF THE WEBSITE OR SERVICES, DOWNLOADING ANY MATERIALS, OR COMPLETING ANY APPLICATION PROCESS VIA THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS. IF THESE TERMS ARE NOT ACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO CEASE USING THE WEBSITE AND SERVICES.
1. Website Access and Electronic Communication
The Website is controlled and operated by us from the United States. We make no representation that any part of the Website is appropriate or available for use in other locations. Those who choose to access the Website do so on their own initiative and at their own risk and are responsible for compliance with all applicable local laws. We reserve the right to discontinue the Website or to limit the availability of the Website to any person, geographic area, or jurisdiction, at any time and in our sole discretion for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms; (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Website to you is no longer commercially viable.
The Website is intended for informational purposes and to be used to access and purchase our Services. Not all of the Services described on this Website are available in all geographic areas of the United States. You may not be eligible for all of the Services described in this Website. We reserve the right to determine all eligibility for such Services in our sole discretion.
We do not knowingly market the Website or any Services to minors under eighteen (18) years of age, and do not knowingly collect personal information or make any active effort to collect personal information from minors and do not wish to receive such information. We cannot prevent minors from visiting the Website and must rely upon parents, guardians, and others responsible for supervising minors to decide what content is appropriate for such minors.
By accessing or visiting the Website, sending an email, or otherwise communicating with us through the Website or in connection with our Services, you are communicating with us electronically and you agree to receive electronic communication from us, including by email and by posting to the Website. You agree that any electronic communication from us satisfies any legal requirements that such communication must be in writing. Except as otherwise agreed by you and Optimizing, you also agree that any communications that you submit or otherwise provide to us via the Website, by email or otherwise, are and will be treated as non-confidential and non-proprietary and that we will have the right to use such information in accordance with the Privacy Policy.
When you provide any information or material on our Website or otherwise, you acknowledge and agree that we do not guarantee that the materials will remain available to you or that you will qualify for the Services we offer.
2. Ownership and Restrictions on Use of Website Content
The Website and Services, including but not limited to any text, images, audio, video, product and price information, reviews, apps, information, analysis, materials, opinions, and email newsletters on the Website or in the Services (collectively, “Content”), belong to us or third parties, unless otherwise expressly agreed in writing by us. No Content from the Website or Services may be captured, reproduced, transferred, sold, licensed, removed, deleted, augmented, published, transmitted, uploaded, reverse engineered, edited, posted, publicly displayed, linked, broadcast, or distributed or exploited by any other means, unless otherwise expressly permitted in these Terms or in writing by us. ANY DISTRIBUTION FOR COMMERCIAL PURPOSES IS STRICTLY PROHIBITED WITHOUT OBTAINING A LICENSE TO DO SO FROM US OR OUR LICENSORS OR UNLESS EXPLICITLY PERMITTED BY THESE TERMS. If you copy, reproduce, or retransmit any part of our Website or Services in breach of these Terms, your right to use our Website and Services will cease immediately and you must, at our option, return, destroy, or recall any copies of the Content you have made.
You may download and use Content displayed on the Website for your personal, non-commercial use only and only so long as you maintain and preserve any Optimizing copyright or proprietary notices. However, you may not download or use the Content displayed on the Website for commercial or public uses, unless expressly permitted in writing by us.
You may not do any of the following while accessing or using the Website or Services: (i) access, tamper with, or use non-public areas of the Website or Services, Optimizing’s computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) forge any TCP/IP packet header or any part of the header information in any email, or in any way use the Website or Services to send altered, deceptive or false source-identifying information; or (iv) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the services, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Website or Services.
3. Accuracy of Website Content
All Website Content is intended for informational and educational purposes only. While the Content is believed by us to be honest and accurate, we and our third-party providers of Content do not guarantee the accuracy, completeness, usefulness, or timeliness of the Content on the Website. We do not endorse nor have any responsibility for any Content on the Website by anyone other than our authorized employees or spokespersons while acting in their official capacities.
The Content on the Website should never be relied upon as the sole basis for making any decisions to purchase products or services from Optimizing. We and our third-party providers, affiliates, agents, and licensors will not be liable for any purchase decisions made based on the Content and/or the Website. Any reliance on the Content is at your own risk, and you assume any and all risks associated with your purchase decisions.
We and our third-party providers, affiliates, agents, and licensors may be active investors in businesses related to or mentioned on this Website and may or may not have open investment positions in those businesses. You assume any and all risk associated with your purchase decisions irrespective of whether we or our third-party providers, affiliates, agents, or licensors hold positions in products mentioned on the Website.
4. Copyright and Trademarks
Optimizing respects copyright and other proprietary laws and expects you to do the same. We reserve the right to terminate your access to the Website or Services if you repeatedly infringe or are reasonably believed to have been repeatedly infringing the rights of copyright or other proprietary rights holders by way of the Website or Services.
Without limiting any other language in these Terms, you acknowledge and agree that the Website, Services, and Content are protected by copyright laws, trademark laws, other laws of the United States, and laws of other countries. Without limiting any other language in these Terms, you acknowledge and agree that the Website, Services, and Content, which includes all associated proprietary rights, are the exclusive property of Optimizing and our licensors. You further acknowledge and agree that all trademarks appearing on the Website, Services, and Content are owned by us or the third party that provides it. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary right notices incorporated in or accompanying the Website, Services, or Content.
5. Prohibitions and Rights
In connection with the acknowledgement of our rights, above, you agree not to:
• Use, display, mirror, or frame the Website or any individual element within the Website, including our name(s);
• Access, tamper with, or use non-public areas of the Website – e.g. our computer systems, etc.;
• Attempt to probe, scan, or test the vulnerability of any of our systems or networks;
• Breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by us, any of our providers, or any other third party – e.g. other users, etc.;
• Attempt to access or search the Website through the use of any engine, software, tool, agent, device, or mechanism – e.g. spiders, robots, crawlers, data mining tools, etc. – other than the software and/or search agents provided by us;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
• Use any meta tags or other hidden text;
• Use any metadata utilizing our trademark or URL;
• Forge any TCP/IP packet header or any part of the header information in any email or posting;
• Use the Website in any way to send altered, deceptive, or false source-identifying information;
• Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used, contained, or displayed within the Website or Services;
• Interfere with or attempt to interfere with the access of any user, host, or network – e.g. sending a virus, overloading, flooding, spamming, mail-bombing, etc.;
• Collect or store any Personal Information from other users of the Website or Services;
• Impersonate or misrepresent your affiliation with any person or entity;
• Access the Website behind proxy servers or URL cloaking techniques; and/or
• Encourage or enable any other individual to do any of the foregoing.
You acknowledge and agree that we have the right to investigate and prosecute violations of any of the above prohibitions or any of these Terms to the fullest extent allowed under applicable law.
6. Enforcement
You also acknowledge and agree that we do not have an obligation to monitor your access or use of the Website or Services, but we retain the right to do so for the purpose of operating the Website and Services and ensuring compliance with these Terms as well as the law. At any time and without prior notice, we reserve the right to disable your access if we find a violation of these Terms or the law.
Any rights not expressly granted herein are reserved by us. We will determine your compliance with the Terms and the Privacy Policy in our sole discretion and our decision shall be final and binding. Any violation of the Terms or the Privacy Policy may result in restrictions on your access to all or part of the Website or Services and may be referred to law enforcement authorities. We, in our sole discretion, reserve the right to disqualify and terminate access or use of any individual found to be (a) tampering with the operation of the Website; (b) acting in violation of the Terms or the Privacy Policy; (c) acting in an unethical or disruptive manner; or (d) acting with intent to annoy, abuse, threaten, or harass us, our representatives, or any other individual in any manner related to the Website or Services.
Optimizing also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce the Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to user support requests, or (e) protect the rights, property, or safety of Optimizing, its users, and the public. Optimizing also reserves the right to remove Content alleged to be infringing another’s intellectual property rights without prior notice, at our sole discretion.
7. Online Payments
Payment Options. Most purchases of Services (“Purchases”) will occur electronically online and will require a valid, accepted, credit card or other payment method that we, in our sole discretion, elect to accept as payment. You authorize us, or our designated third-party payment provider, to charge the credit card or other accepted payment method you designate in the amount specified in connection with the transaction. If you desire to designate a different form of payment, or if there is a change in your payment information, you must update that information with us or with our designated third party payment provider, as applicable, to reflect such change. You may experience temporary disruption of your access to the Services while we are verifying new payment information. If you transmit to us, or one of our designated third-party payment providers, a purchase request, you warrant that your use of the particular credit card or other accepted payment method is authorized and that all information that you submit to us, or our designated third-party payment provider, is true and accurate (including, without limitation, your credit card number, expiration date, and other account information), and you agree to pay all fees you incur.
Cancellations and Refunds. We, or our designated third party payment provider, as applicable, reserve the right to refuse or cancel any Purchases or attempted Purchases at any time in our sole discretion. Further, we, or our designated third party payment provider, as applicable, may reverse certain transactions if we have a reasonable, good-faith belief that such transactions, alone or together with other transactions, are illicit, fraudulent, abusive, unlawful, or otherwise conducted in bad faith or as part of any form of unfair dealing (which could include such things as cheating, hacking, or other prohibited activity). EXCEPT AS OTHERWISE STATED IN THESE TERMS OR REQUIRED BY APPLICABLE LAW, ALL SALES AND PURCHASES ARE FINAL.
Changes in the Amount Authorized. If the amount to be charged to you varies from the amount you previously authorized (other than due to the imposition or change in the amount of Sales Taxes, if any), we, or our designated third party payment provider, as applicable, shall provide notice of the amount to be charged and the date of the charge at least ten (10) days before the scheduled date of the transaction. You agree that we, or our designated third party payment provider, as applicable, may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Currency. Unless otherwise stated, all fees and charges are quoted and must be paid in U.S. Dollars. Purchases made in currency other than U.S. Dollars shall be made at the exchange rate designated in your agreement with your credit card or other acceptable payment method provider.
Taxes. Your Purchases may be subject to applicable sales tax, use tax, value added tax, or other similar taxes, duties, or tariffs (collectively, “Sales Taxes”). In the event that Sales Taxes apply, we, our designated third party payment provider, or a Partner, as applicable, will collect the required Sales Taxes from you and remit it to the applicable tax authorities. Under most circumstances, the applicability of Sales Taxes will be determined by the residence of the person or entity making the purchase. We will not be responsible for any taxes on net income, or other taxes, duties, or tariffs associated with your Purchases, except for Sales Taxes as described in this section or as required by applicable law.
8. Third-Party Links and Partners
These Terms only apply to our Website and Services. The Website and Services may include links to or utilize the services of third-party websites, resources, resellers, and business partners of ours (“Third-Party Partners”). Because we do not have control over such Third-Party Partners, we do not make any representations about any Third-Party Partners. You acknowledge and agree that we are not responsible for the availability of the external websites, resources, or services of such Third-Party Partners. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third-Party Partner websites, resources, or services. If provided, you should review the terms and conditions of Third-Party Partners, which are separate and unrelated to these Terms.
9. Disclaimer
THE WEBSITE, SERVICES, AND CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED BY OPTIMIZING IN WRITING. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. ALSO, WE EXPLICITLY DISCLAIM ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE WEBSITE, SERVICES, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, ERROR-FREE BASIS, OR THAT THE WEBSITE, SERVICES, OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM ANY RESPONSIBILITY FOR HARM TO YOUR PHONE, COMPUTER, OTHER ELECTRONIC DEVICES, CAR, LOSS OF DATA, OR OTHER HARM THAT MAY RESULT FROM ACCESS TO OR USE OF THE WEBSITE OR SERVICES, INCLUDING BUT NOT LIMITED TO CONTRACTION OF A COMPUTER OR PHONE VIRUS.
WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, OR COMPLETENESS OF ANY CONTENT OR SERVICES PURCHASED OR OBTAINED THROUGH OR IN CONNECTION WITH THE WEBSITE, OR THAT DEFECTS WILL BE CORRECTED. CONTENT PROVIDED OR EXPRESSED ON THE WEBSITE, INCLUDING THAT OF THIRD PARTIES, MAY NOT REFLECT OUR POLICIES OR CONFORM TO ANY AGREEMENT YOU MAY HAVE WITH US.
For clarity, no advice or information, whether oral or written, obtained from us, the Website, or the Content will create any warranty not expressly made herein.
You acknowledge and agree that your access to and use of the Website, Services, and Content is dependent upon access to telecommunication services and internet services. You shall be solely responsible for acquiring and maintaining all telecommunication services, internet services, and other hardware and software required to access and use the Website, Services, and Content.
You agree that your access to and use of the Website or Content and your purchase of Services on or in connection with the Website are at your sole risk, whether known or unknown to you.
10. Limitation of Liability
Without limiting the foregoing, you also acknowledge and agree that Optimizing and its officers, directors, members, managers, agents, third-party providers, affiliates, or licensors are not and will not be responsible for, liable for, or incur any claims, causes of action, suits, penalties, fines, losses, damages, costs, or expenses, including attorneys’ fees (“Claims”) arising out of or in connection with these Terms or from your access to, use of, or inability to access or use the Website, Content, or Services provided on the Website for or arising out of the following:
• Personal or bodily injury, death, emotional distress, or property damage;
• Interactions or meetings with other users of the Website, Services, or Content or other persons with whom you communicate or interact with as a result of your use of the Website, Services, or Content;
• Loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any telecommunication services and internet services or the failure of such services that you use to access or use the Website, Services, or Content; and
• Any other Claims arising out of or relating to your acts or omissions or the acts or omissions of any third party, whether in contract, warranty, strict liability, negligence, or other legal theory regardless of whether or not we have been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
The foregoing limitations apply even if we have been advised of the possibility of such damages (or they are otherwise foreseeable), or if such Claims result from: (a) the use or the inability to use the Website or results of the use of the Website or any materials posted on it, however arising and whether caused by tort (including negligence), breach of contract or otherwise; (b) the cost of procurement of substitute products or services resulting from any products, data, information, or services obtained or messages received or transactions entered into through, from or as a result of the Website; (c) unauthorized access to or alteration of your transmissions or content; (d) statements or conduct of any third party on the services or Website; or (e) any other matter relating to the products or services we offer or the Website. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Without limiting the foregoing, you acknowledge and agree that if we are found liable for any of the foregoing Claims or for any other Claims arising hereunder, including the breach of these Terms, we and any other person or entity involved in creating, producing, or delivering any of the foregoing will under no circumstances be liable for any incidental, special, exemplary, punitive, or consequential damages, including, without limitation, lost profits, loss of data, loss of goodwill, or the cost of acquiring substitute products or services, whether in contract, warranty, strict liability, negligence, or other legal theory, regardless of whether or not we have been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
By accessing the Website or Services, you understand that you may be waiving rights with respect to Claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read, understood, and hereby expressly waived the benefits of section 1542 of the Civil Code of California, and any similar law of any state or territory, which provides as follows: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
The limitation of liability set forth above is a fundamental element of the basis of the bargain between us and you. The limitation of liability set forth above shall apply to every form of action, whether in contract, warranty, strict liability, negligence or other legal theory, and shall survive any breach of the Terms, the Privacy Policy, the Agreement, or any agreement or the failure of the essential purpose of the Terms, the Privacy Policy, the Agreement, any agreement, or any exclusive remedy.
Without waiving the exclusive governing law provision set forth below, some states do not allow the exclusion or limitation of liability for consequential or incidental damages. Therefore, the above limitation may not apply to you. In such states, our liability is limited to the fullest extent allowed under applicable law.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE PRODUCTS OR SERVICES OFFERED BY US MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
11. Indemnification
You agree to defend, indemnify, and hold Optimizing, its members, its managers, its officers, its directors, its employees, and its agents harmless from and against any Claims arising out of or in any way connected with:
• Your access to or use of the Website, Services, or Content, including your violation of these Terms;
• Any goods or services or information you may provide or fail to provide; and
• Any agreements or understandings you have with third parties.
You shall cooperate as fully as reasonably required in the defense of any such claim. Optimizing reserves the right, at its own expense, to assume the exclusive defense and control of any matter or portion thereof subject to indemnification by you.
12. General Provisions
The Terms and the Privacy Policy, as they may be amended from time to time, constitute the entire and exclusive understanding and agreement between us and you regarding the Website, Services, and Content. The Terms and the Privacy Policy supersede and replace any and all prior oral or written understandings or agreements between Optimizing and you regarding those subjects. Notwithstanding the foregoing, any terms in a signed agreement between you and Optimizing related to the Services will supersede and replace terms contained herein to the extent the terms conflict.
If any provision of the Terms or the Privacy Policy is found by a court of valid jurisdiction to be invalid or unenforceable, the remainder of the Terms and the Privacy Policy shall remain in full force and effect and shall be enforced to the fullest extent allowed under applicable law.
No waiver or failure by us to enforce any provision of the Terms or the Privacy Policy shall be valid unless in writing and signed by an officer of Optimizing.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. We may assign or transfer these Terms at our sole discretion without restriction and notice to you. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Nothing contained in the Terms or the Privacy Policy shall be deemed to constitute you and Optimizing as partners or joint venturers or constitute an employment or agency relationship between you and us.
Headings in the Terms and the Privacy Policy are purely for reference and shall not affect the meaning of any term or condition. As used in the Terms and the Privacy Policy, the words “include,” “including,” “e.g.,” “such as,” and variations thereof shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” Any provision of the Terms or the Privacy Policy that must survive to allow us to enforce its meaning shall survive termination for any reason. Any Claim by or through you relating in any way to the Terms, the Privacy Policy, the Website, the Content, or otherwise with respect to their subject matter, regardless of form or the basis of the Claim, must be brought within one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause of action arose) or else such cause of action is waived. A printed version of the Terms or the Privacy Policy, and of any electronic notice pertaining to the Terms or the Privacy Policy, shall be admissible in a judicial or administrative proceeding to the same extent, and subject to the same restrictions, as any other contract, document, or record originally in printed form.
The Terms constitute a written agreement between you and us.
13. Disputes and Claims
Any and all disputes, demands, or Claims arising from or related to your access to and/or use of the Website, Services, our Content, and/or these Terms shall be settled and resolved first by good faith efforts to amicably resolve the matter through discussion and negotiation (which may include mediation if both you and we so agree). If those efforts fail despite such good faith attempts, any disputes shall be governed by and construed in accordance with the laws of the State of Delaware and any dispute shall be subject to binding arbitration in the State of Delaware. However, we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your state or country of residence or any other relevant state or country
14. Controlling Law
These Terms will be governed and interpreted by the laws of the State of Delaware, without regard to its conflict of laws provisions.
15. Notice to International Visitors
The Website and the servers that make them available are located in the United States of America. If you reside in another country, these Terms may conflict with the laws of your country. In the event of such a conflict, these Terms will govern to the extent that they are valid and enforceable under applicable United States laws.
We make no representation that the Website is appropriate or available for use beyond the United States of America. If you use the Website from other locations, you are responsible for compliance with applicable local laws.
16. Privacy
For information and notices concerning our collection and use of your Personal Information, please review our Privacy Policy.
We may electronically monitor areas of the Website and may disclose any Content, logs, records, or electronic communication of any kind (a) to satisfy any law, regulation, or government request; (b) if such disclosure is necessary or appropriate to operate the Website; or (c) to protect our rights or property or our third party partners, sponsors or advertisers, service providers, licensors, or any other user of the Website.
17. Notices
Any notices or other communications permitted or required hereunder, must be in writing.
For clarification on or if you have any questions regarding these Terms, the Privacy Policy, the Website, the Services, or the Content or to report a violation of these Terms please contact us at legal@optimizing.com
