OPEXEngine LLC User Agreement

 

Each person and entity ("you" or "your"), accessing or using any website (including but not limited to benchmarking.opexengine.com and opexengine.com), mobile application, desktop application, plugin, other media platform that references or links to this user agreement, proprietary platform or other technology provided on or through any such website, and any products, services, or information available on and via any such website or provided to you by or on behalf of OPEXEngine LLC (the "Company") from time to time (including products and services referenced in an Invoice (hereinafter defined), collectively, "Services"), hereby accepts and agrees to comply with the terms and conditions set forth in the following user agreement (this "User Agreement"), and you (including, without limitation, each individual using the Services on your behalf) shall be considered a "User". This User Agreement, together with any Invoice issued to you by the Company which references this User Agreement (each, an "Invoice"), are referred to herein collectively as this "Agreement", and govern your access and use of any Service. By signifying your acceptance of this Agreement, entering into any Invoice which references this User Agreement, or by accessing or using the Services or allowing others to access or use the Services on your behalf or through the use of your usernames and passwords ("Access Methods"), you confirm that you are a natural person over the age of 18, and agree (on your own individual behalf and on behalf of any entity for which you use the Services), to be bound by this Agreement (which may be updated from time to time, as discussed below). To the extent any other agreement between you and the Company conflicts with the terms of this Agreement, this Agreement shall govern.

 

1.                General Provisions.

 

1.1.            The Company hereby grants you a fully revocable, nontransferable, nonexclusive right to use the Services solely for your internal business purposes by the number of individual Users identified in the Invoice ("Internal Use"). The foregoing right has been granted to you subject to your agreement to abide by this Agreement as well as any other rules, procedures, policies, terms or conditions governing any Services that may be displayed from time to time on or within the Services or otherwise provided to you by the Company and to which Users will be bound. You may not use any Service on behalf of any other person or entity (each, a "Person").

1.2.            You represent, warrant, and covenant to the Company that: (i) you are authorized to enter into this Agreement and otherwise perform its obligations hereunder; (ii) all use of the Services by or through you or with your Access Methods will be in accordance with this Agreement; and (iii) you will notify the Company immediately upon becoming aware of any violation of this Agreement.

1.3.            The information accessible on and via any Service (the "Content") is the property of the Company and/or third parties, is not the property of any User (except as otherwise expressly provided herein), and is protected by copyright and other intellectual property and proprietary rights. Without limiting the foregoing or expanding any of your rights hereunder, except with respect to Customer Data (hereinafter defined) which you provide to the Company, you agree that you will not publish, broadcast, retransmit, reproduce, commercially exploit, create any derivative of or otherwise disseminate or disclose to any Person such Content. However, you may download Limited Content (hereinafter defined) from the Service on an ad hoc basis, to be used in the normal conduct of your business, such as in reports, charts, pitch books and similar presentations to your employees and third party investors. "Limited Content" means an amount of Content that has no independent commercial value, could not be used as a substitute for any Service or any part of thereof, and is not separately marketed by you, the Company, or any other Person. You may not (i) set up recurring, systematic or automated downloading or validation processes, or (ii) use the Content to create, enhance or maintain an internal database, feed an internal system, or as a substitute for licensing any Service or any portion of thereof. You are not permitted to share Access Methods or use any Service from common workstations or kiosks. You are prohibited from violating or attempting to violate the security of the Services or interfering in any manner with any security-related feature of the Services or any system resources, services or networks connected to or accessible through the Services.

 

2.                Access and Security.

2.1.            In order to use most aspects of the Services, you must register for and maintain active Access Methods. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain Access Methods. Access Method registration requires you to submit to the Company certain personal information, such as your name, job title, mobile phone number and age, as well as a valid payment method supported by the Services. You agree to maintain accurate, complete, and up-to-date information associated with your Access Methods. Your failure to maintain accurate, complete, and up-to-date information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You hereby agree not to disclose your Access Methods to any other Person. You will be solely responsible for ensuring the security and confidentiality of the Access Methods, and will be responsible for all activity with respect to any Service occurring through or in connection with your Access Methods. You agree to notify the Company immediately of any actual or suspected loss, theft or unauthorized use of your Access Methods or any other breach of security relating to any Service. Upon receipt of such notice, the Company will terminate your Access Methods provided that you will remain responsible for any actions taken through the use of your Access Methods before they are terminated. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use any Service, and you agree that you may be denied access to or use of any Service if you refuse to provide proof of identity or other method of identity verification. In the Company's sole discretion, the Company may terminate, revoke, suspend, modify, or change any or all of your Access Methods at any time with or without prior notice.

2.2.            You hereby release the Company from any and all liability concerning any activity taken with respect to the Services using your Access Methods. The Company has no obligation to inquire as to the authority or propriety of any use of, or action taken under, your Access Methods and will not be responsible for any loss to you arising from any such use or action. The Company will take commercially reasonable security precautions when using the Internet, telephone or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized Persons.

2.3.            You are responsible for obtaining the data network access and acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. The Company does not guarantee that any Service, or any portion thereof, will function on or with any particular network, software, hardware, or devices. The Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. The Company cannot guarantee the continuous and uninterrupted availability and accessibility of any Service. The Company may restrict the availability of the Services, or certain portions, areas, or features thereof, if this is necessary in view of capacity limits, the security or integrity of its servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Services. The Company may improve, enhance and modify the Services and remove, modify, or add features and functionality thereon from time to time in its sole discretion.

 

3.                Disclosure and Use of Information.

3.1.            You agree that the Company may contact you by email, telephone, text message, or other method (including by an automatic telephone dialing system) at any of the contact information provided by you or on your behalf in connection with your Access Methods, including for marketing purposes. You understand that you are not required to provide this consent as a condition of receiving the Services, and you may have the right to opt out of such contacts to the extent permitted by Applicable Law (hereinafter defined).

3.2.            The Company may, but shall not be obligated to, review, monitor, or remove Content, at the Company's sole discretion and at any time and for any reason, without notice to you. The Company may, without limitation, investigate any complaint or reported violation of its policies and take any action that it deems appropriate in its sole and absolute discretion. Such action may include, but is not limited to, issuing warnings, suspending or terminating your use of all or any portion of any Service and denying you access to all or any portion of any Service. The Company also reserves the right to report any activity that it suspects may violate any Applicable Law to appropriate law enforcement officials, regulators, or other persons or entities. In order to cooperate with governmental requests, to protect the Company's systems and Users, to ensure the integrity and operation of the Services, business or systems, to comply with the requirements of Third Party Content Providers (hereinafter defined), or otherwise to comply with Applicable Law, the Company may access and disclose any information, including Customer Data and information regarding a User, it considers necessary or appropriate.

 

4.                Ownership and License.

4.1.            The Services, the Content, all Aggregated Data (hereinafter defined) and any and all intellectual property rights pertaining thereto (including but not limited to copyrights, patents, trademarks and service marks) are owned by the Company or third parties, and all right, title and interest therein and thereto shall remain the property of the Company and/or its licensors, successors or other third parties and shall not be considered the property of any User (except as otherwise expressly provided herein). You agree not to remove any copyright, trademark or other proprietary notice or legend contained on or in the Services, or their Content (or printed copies thereof). The Company and other names and indicia of the Company's products and/or services referenced herein are exclusive trademarks and service marks of the Company. Other product and company names, trademarks and service marks appearing in the Services are the intellectual property of their respective owners.

4.2.            Each time you disclose or provide any Customer Data to the Company, you shall be deemed to represent and warrant the following with respect to such disclosure: (i) the information so disclosed is owned solely by you or is duly licensed to you, which license permits such disclosure and the use thereof by the Company as contemplated by this Agreement; (ii) such disclosure, and the use thereof by the Company as contemplated hereby, does not and will not breach the terms of any agreement, duty, or obligation to which you or such Customer Data is subject; and (iii) neither the Customer Data so provided, nor your submission, uploading, publishing or otherwise making available of such Customer Data, nor the Company's use of such Customer Data as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any Applicable Law.

4.3.            You acknowledge and agree that, as between the Company and you, to the fullest extent permitted by Applicable Law, all right, title and interest in and to the Services, all Content, and all modifications and enhancements thereof or thereto, including, without limitation, all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by the Company or the Company's licensors and providers, as applicable. The Company reserves all rights not expressly granted under this Agreement. You are authorized to access and use the Services and related Content only for Internal Use as contemplated by this Agreement, provided that you continue to, at all times, comply in full with this Agreement.

 

5.                Termination. The Company reserves the right to reject your registration or suspend or terminate your access to and use of all or any portion of any Service at any time and for any reason, in its sole discretion. In the event your use of any Service is suspended or terminated, this Agreement will continue to apply to your past use of the Services in the form in which it then existed at the time of the subject use. Termination of your access to and use of any Service shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to the Company. Without limiting the foregoing, this Section 5 (Termination), together with Sections 1 (General Provisions), 2 (Passwords and Security), 3 (Disclosure and Use of Information), 4 (Ownership and License), 6 (Indemnity), 8 (Privacy), 9 (Customer Data), 10 (Fees), 12 (Third Party Content; Links), 13 (Confidentiality), 14 (Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Governing Law; Jurisdiction), and 17 (Miscellaneous) shall survive termination of this Agreement for any reason.

 

6.                Indemnity. You will indemnify, defend, and hold harmless the Company and all other Covered Persons (hereinafter defined) against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys' fees and court costs), and damages based on, arising out of or relating to: (i) use of the Services by you or with your Access Methods; (ii) your breach of this Agreement (including, without limitation, any Third Party Terms (hereinafter defined) or any representation, warranty or covenant made by you herein); (iii) your violation or alleged violation of any Applicable Law or any third party's rights; (iv) your infringement of any right to any Third Party IP (hereinafter defined) or allegations thereof; (v) your misuse of or reliance on any Content; (iv) any Customer Data or Content developed, provided, or otherwise related to your use of any Service; (v) any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; or (vi) negligence, willful misconduct, fraud, defamation, libel, violation of privacy rights, unfair competition, or allegations thereof to the extent caused by you or on your behalf.

 

7.                Notices; Modifications.

7.1.            From time to time, the Company may post or embed legal notices in the Services. You shall not remove these notices, or any additional information contained along with any such notice. The Services may contain references to trademarks, copyrighted materials, technologies, products, data, processes and software and other proprietary rights of the Company, Third Party Content Providers or other Persons. Except as necessary for your access to and use of the Services for the purposes expressly permitted by this Agreement, no license to or right in any such trademarks, copyrighted materials, technologies, products, data, processes, software or other proprietary rights of the Company or any Third Party Content Provider is granted to or conferred upon you.

7.2.            The Company may modify the terms of this Agreement or any of the policies or guidelines governing any Service, at any time and in its sole discretion (including, without limitation, as required by any Third Party Content Provider), by posting the modified Agreement on or in the Services. The Company will not be required to provide notice of any such modification directly to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review this Agreement periodically so that you are aware of any modifications. Your use of any Service indicates your full acceptance of this Agreement in its then-current form each time you use any Service. You agree that the notice and modification provisions provided in this Agreement are reasonable. You may not modify the terms of this Agreement or any of the policies or guidelines governing any Service without the Company's express prior written consent. Any provision of a purchase order or other business form submitted by you will have no legal effect.

7.3.            The Company reserves the right, in its sole discretion, to make unscheduled deployments of updates, enhancements or such other changes to the Services at any time that the Company deems necessary or otherwise desirable, in each case to the full extent permitted by Applicable Law and without notice or liability to you.

 

8.                Privacy. This Agreement and all use of the Services is governed by and subject to the Company's privacy policy, found here: https://www.opexengine.com/privacy-policy.

 

9.                Customer Data. As partial consideration for the Services and as a condition to your access to and use of the Services, at a frequency specified by the Company, you will cause your Users to provide to the Company certain data and information specified by the Company from time to time (collectively "Customer Data"). Provision of Customer Data is mandatory and a prerequisite for the Company's ability to provide the Services and Content set out herein. You are solely responsible for all Customer Data provided by you or any of your Users. In the event any of your affiliates provide Customer Data or otherwise use the Services, you shall ensure that such affiliate complies with each and every of your obligations hereunder and shall be responsible for such compliance. Any Customer Data provided by you remains your property. The Company agrees, except as permitted hereby, not to disclose Customer Data externally other than as required by Applicable Law. By providing Customer Data hereunder, non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers), irrevocable license to use, copy, disclose, distribute, and display Customer Data, to provide, maintain, update, and improve the Services, as permitted by Applicable Law, to perform security and operations management, to protect against fraudulent or illegal activity, to create statistical and other analyses, for research and development purposes, in aggregated or deidentified form ("Aggregated Data"), and/or to improve and develop the Company's products and services. The Company may include Aggregated Data in the Services and Content, and Aggregated Data shall not constitute Customer Data hereunder. For avoidance of doubt, the Company owns and retains all rights in, all data and information related to the provision, performance, operation and use of the Services, including information generated by your use of the Services (including, without limitation, automated reporting in the Service that identify to the Company and analyze use and performance of the Services), which data constitutes the Company's sole property and constitutes part of the Services.

 

10.             Fees. The Company may charge certain fees for use of the Services, including the fees identified in an Invoice (the "Fees"). The amount and nature of the Fees will be posted on or in the Services from time to time or identified in an Invoice, and may be changed from time to time by the Company by posting such updated Fees on or in the Services. Users are liable for all Fees arising out of providing Customer Data and receiving Content or Services, as applicable. Users must have a payment method on file when using the Services, and must pay all Fees and other amounts owed, including taxes, by the date due. If your payment method fails, or your account is past due, the Company may collect amounts owed by charging other payment methods on file with it, and retain collection agencies and legal counsel in connection therewith. In addition, the Company may charge late fees with respect to amounts past due, up to the maximum amount permitted by Applicable Law. The Company may, in its sole discretion and without consent from, or payment, Fee reduction, or other credit, display third party advertisements (including links and references thereto) or other Content in any part of the Services. Fees paid hereunder are final and non-refundable. As between you and the Company, the Company reserves the right to establish, remove and/or revise Fees for any or all Services and use of any Service at any time in the Company's sole discretion. You will be responsible for Fees incurred under your account regardless of your awareness of such Fees or the amounts thereof. The Company may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar Services or use of any Service, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of any Service or the Fees applied to you. The Company may use the proceeds of any Fees for any lawful purpose.

 

11.             Conduct. You agree that while using the Services you will comply with the following rules (in addition to the other rules set forth elsewhere on or in any Service, or in this Agreement):

11.1.         You will not: (i) violate any Applicable Law in connection with your access to or use of any Service; (ii) use the Services if you are not able to form legally binding contracts or are suspended from using the Services; (iii) fail to pay for Services or Content received by you or fail to deliver Customer Data licensed by you unless such failure is in compliance with this Agreement and the policies set forth on or in the Services from time to time; (iv) interfere with the activity of other Users of any Service; (v) link to, mirror or frame any portion of any Service; (vi) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of any Service or unduly burdening or hindering the operation and/or functionality of any aspect of any Service; (vii) dilute, tarnish or otherwise harm the Services or the Company's brand in any way, including through unauthorized use of Content or provision of Customer Data, registering and/or using any domain names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to the Company's domains, trademarks, taglines, promotional campaigns or Content; (viii) use any Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ix) access or use any Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (x) except as permitted hereby and for Internal Use, download or copy any Content from any Service for your own benefit or for the benefit of another Person; (xi) attempt to gain access to any Service, other Users' accounts, or any computer systems or networks connected to any Service through hacking, password mining or any other similar means; (xii) use any meta tags or any other "hidden text" utilizing any of the Company's names or trademarks without the Company's express written consent; (xiii) decompile, disassemble, modify, translate, or reverse engineer any Service or any Content or otherwise attempt to obtain the source code for any Service; (xiv) sell, license, sublicense, rent, lease, timeshare, assign, pledge, transfer, or otherwise encumber any Service or any Content or permit any other Person to use any Service; (xv) use any name, trade mark, service mark, logo(s), or other intellectual property of the Company without the Company's prior written consent in each instance; (xvi) use any Service or Content for any purpose other than as expressly permitted hereby; (xvii) use any Service or Content to develop or assist in the development of any website, platform, software, or technology competitive with or similar to any Service (including, without limitation, including any similar ideas, data, products, services, features, functions or graphics); (xviii) modify, alter, tamper with, translate, repair or create derivative works based on or using any Service or Content; or (xix) use the Services or any Content to create a searchable archive or database.

11.2.         You agree that the Services are only intended for manual use, and you will not access any Service through the use of any "bots" or other software applications that may be used to perform automated tasks or scripts, including accessing or in any way using any Service. You will not "scrape" any Service or otherwise use any data mining, robots, or similar data gathering or extraction methods in connection with any Service, and you will not use any Service in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data.

11.3.         You will not submit or transmit to, through, or in connection with any Service or otherwise to the Company: (i) any unlawful, inaccurate, misleading, harassing, libelous, privacy invading, abusive, threatening, defamatory, vulgar, racist, or otherwise harmful or objectionable materials (including, but not limited to, any material that depicts nudity, sexual conduct or violence); (ii) any material that infringes upon any third party right (including, but not limited to, any copyright, trademark, right of publicity or privacy, or any other intellectual property or similar rights, as well as rights associated with any recognizable name, voice, person, or image (collectively "Third Party IP")); (iii) any unsolicited commercial messages, spam, bulk communications, chain letters, or pyramid schemes; (iv) any virus, Trojan horse, worm, time bomb, trap door, disabling code, malware, or other computer programming device the purpose of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, otherwise harm, misdirect or impede in any manner any computer, software, hardware, firmware, system, or network; (v) any political or promotional opinions, in each case, for the purpose of promoting those opinions; (vi) any material which may constitute or encourage conduct that is fraudulent, a criminal offense or civil wrong or otherwise violates any Applicable Law; or (vii) any material which contains any disabling mechanism or protection feature designed to prevent its use by the Company in the manner contemplated in this Agreement, or which would otherwise render inaccessible or impair the use thereof in any manner.

11.4.         In your use of the Services and/or provision of Customer Data, you will not (i) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior; or (ii) impersonate any Person, make any false statement regarding any Person (including but not limited to, any Person's employment, agency or affiliation with any other Person), or create false identities for any reason.

11.5.         You will not take any action that imposes (or may impose, as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on any servers or other infrastructure underlying any Service, and you will not use any Service in any way that causes (or is likely to cause, as determined by the Company in its sole discretion) any Service or access to or use of any Service to be interrupted, interfered with, damaged or impaired in any way, including but not limited to any use of any Service that in any way interferes with or disrupts the Company's ability to provide any Service or any User's ability to use or access any Service.

11.6.         You will: (i) ensure that Customer Data you submit, whether through any Service, or otherwise (including the storage or transmission thereof), complies with this Agreement and all Applicable Laws; (ii) promptly handle and resolve any notices and claims relating to such Customer Data, including any notices sent to you by any Person claiming that any Customer Data violates any Third Party IP rights and any other notices; and (iii) maintain appropriate security, protection and backup copies of such Customer Data, which may include, your use of additional encryption technology to protect such Customer Data from unauthorized access.

11.7.         You represent and warrant that you have the full legal right, power and authority to provide Customer Data provided in connection with your use of any Service and to grant the rights granted by you to the Company with regard to such Customer Data in this Agreement.

11.8.         If after you submit any Customer Data to the Company, you receive any notice or otherwise learn in any way that any of the representations made by you in above were not accurate, complete and not misleading in all material respects or no longer are accurate, complete and not misleading in all material respects or of any claim by a third party to the effect of the foregoing, you will promptly provide the Company with written notice all relevant facts regarding the same and if appropriate, remove the Customer Data from the Services.

You further agree not to cause, encourage or permit any third party to do any of the foregoing on your behalf or in any way with your assistance or collaboration, including without limitation by providing other Persons with your Access Methods or by otherwise authorizing any third party to access or use the Services.

 

12.             Third Party Content; Links. The Services may be made available or accessed in connection with third party products, services, and content (including advertising, collectively, "Third Party Content"; the providers of such products, services, and content, collectively, "Third Party Content Providers") that the Company does not control. You acknowledge that different terms of use and privacy policies ("Third Party Terms") may apply to your use of such Third Party Content. The Company does not endorse such Third Party Content and in no event shall the Company be responsible or liable for any products or services of such Third Party Content Providers. Additionally, each Third Party Content Provider will be a third party beneficiary to this Agreement if you access any Service using applications developed for devices provided by such Third Party Content Providers. These third party beneficiaries are not parties to this Agreement and are not responsible for the provision or support of any Service in any manner. Your access to the Services is subject to all applicable Third Party Terms. The Content may contain links to other websites that operate independently from the Company and the Services. Linked websites may have their own agreements, terms of use, privacy statements, or notices.  If you visit any linked websites the Company strongly suggests you review any such agreements, terms, statements, and notices.  Whether or not such websites are linked to any Service, the Company is not responsible for, and this Agreement is not applicable to, any websites that are not affiliated with or owned by the Company (including, without limitation, any content, use, or practices of such websites).

13.             Confidentiality. All non-public information regarding this Agreement, the Services (including the functionality and look and feel thereof), the Content, the relationship between the parties, the Company, its subsidiaries, and/or their respective businesses, and/or the Company's receipt and use of Customer Data, is proprietary to the Company or its licensors (including, without limitation, the Third Party Content Providers), and, as between you and the Company, constitutes the Company's sole property and confidential information. You will not use such information except as necessary to use the Services and provide Customer Data pursuant to this Agreement, and will not disclose such information to any third party.

 

14.             Disclaimer of Warranties. The Services are intended for Internal Use only. The Company makes no warranty that the operation of the Services will be uninterrupted or error-free or as to the accuracy, completeness, suitability, or result obtained from the use of any Service or Content. You recognize that the Content and Services are performance analysis tools designed to assist in the making of business decisions, but that you shall have and bear sole and complete responsibility for all such decisions. Accordingly, the Company will not be liable under this Agreement (even where any other term of this Agreement might suggest otherwise) or in tort (including negligence) or otherwise for any losses, damages, expenses, legal actions or claims whatsoever incurred or sustained by you relating to the quality or appropriateness of any analysis, recommendations, advice or decisions made (in whole or in part) with the aid of any Content or Service. THE SERVICES AND ALL CONTENT AND INFORMATION AVAILABLE ON OR VIA THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING OF THE SERVICES OR THE INFORMATION, CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR VIA THE SERVICES; AND (ii) ANY WARRANTIES OF TITLE OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.

 

15.             Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS SUBIDIARIES, THE THIRD PARTY CONTENT PROVIDERS, THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, CONSULTANTS, ADVISORS, LICENSORS, OR EMPLOYEES (COLLECTIVELY, "COVERED PERSONS") BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE USE OF OR INABILITY TO USE ANY SERVICE OR CONTENT, PRODUCTS, SERVICES OR INFORMATION OBTAINED OR STORED IN OR FROM ANY SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ANY COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF ANY COVERED PERSON EXCEED, IN AGGREGATE, THE TOTAL FEES ACTUALLY RECEIVED BY THE COMPANY FROM YOU FOR THE RELEVANT SERVICE DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND ANY LIMITATION OF LIABILITY.

16.             Governing Law; Jurisdiction.

16.1.         This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed therein. You hereby submit to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois with respect to any dispute arising out of or relating to this Agreement.

16.2.         The Company controls and operates the Services from its headquarters in the United States of America, and the Company makes no claim that any Service or Content may be lawfully used outside of the United States. Access to the Services or certain Content may not be legal by certain Persons or in certain countries. If you access any Service from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer any Service or Content (or any portion thereof or any rights thereto granted by the Company) except as authorized by the applicable laws of the United States, the laws of the jurisdiction in which you gained access to such Service or Content, and any other applicable law, rule, regulation, administrative, judicial, or governmental order, or legal process (including, without limitation, any requirements of securities exchanges and self-regulatory organizations, collectively, "Applicable Laws"). In particular, but without limitation, no Services, Content, portion thereof, or rights thereto may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By accessing and using any Service, you represent and warrant that you are not located in any such country or on any such list. The Company reserves the right to limit, in its sole discretion, the availability of the Services to any Person, geographic area, or jurisdiction, at any time.

 

17.             Miscellaneous. This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between you and the Company with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. The Company may assign this Agreement in whole or in part at any time without your consent. You may not assign this Agreement or delegate any of your obligations hereunder. Any purported assignment of this Agreement in violation of its terms shall be void. Any notice to the Company that is required or permitted by this Agreement shall be in writing and shall be sent by confirmed e-mail to legal@opexengine.com. Failure of either party to enforce any of its rights under this Agreement will not act as a waiver of such rights. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect. Headings used in this Agreement are for convenience only. They do not constitute part of this Agreement.