THE TERMS AND CONDITIONS SET FORTH BELOW AND IN THE FREQUENTLY ASKED QUESTIONS (“FAQs”) WHERE SUCH FAQs INDICATE THEY ARE INTEGRATED INTO THESE TERMS OF SERVICE (COLLECTIVELY, THE "TERMS") GOVERN YOUR USE OF THIS SITE ON THE INTERNET, THE WORLD WIDE WEB, MOBILE NETWORKS, OR ANY OTHER COMMUNICATION METHODS NOW KNOW OR IN THE FUTURE DEVELOPED. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU, AN INDIVIDUAL USER OF AT LEAST 18 YEARS OF AGE, OR IF YOU ARE USING OR SUBSCRIBING TO OMACRO ON BEHALF OF ANY ENTITY, INCLUDING A COMPANY, ORGANIZATION, OR TRUST, NO MATTER THE LEGAL FORM OF THE ENTITY (COLLECTIVELY “ENTITY”), THEN YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND SUCH ENTITY AND THE ENTITIE'S SUBSEQUENT USERS TO THESE TERMS, AND AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF SUCH ENTITY ("YOU" OR, COLLECTIVELY, "USERS"), AND OMACRO AND GOVERN YOUR ACCESS TO, AND USE OF, THE OMACRO WEBSITE LOCATED AT http://www.omacro.com TOGETHER WITH THE SERVICES AVAILABLE THROUGH AND FROM OMACRO, THIS AND OTHER WEB, MOBILE OR OTHER SITES AND SOFTWARE APPLICATIONS OF ANY KIND (THE "SITE"), INCLUDING YOUR SUBSCRIPTION TO AND USE OF OMACRO.
IF YOU ARE UNDER THE AGE OF 18 YOUR PARENT OR GUARDIAN MUST ENTER INTO THIS AGREEMENT ON YOUR BEHALF. IF YOU ARE UNDER THE AGE OF 18 YOU AFFIRM THAT BY YOUR CONTINUED OR FUTURE USE YOUR PARENT OR LEGAL GUARDIAN HAS FIRST AGREED TO THESE TERMS ON YOUR BEHALF.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, CLOSE THE SITE DOWN IMMEDIATELY AND DO NOT ACCESS OR OTHERWISE USE THE SITE OR ANY INFORMATION CONTAINED ON THE SITE. YOUR USE OF THE SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE AND BE BOUND BY EACH OF THE TERMS SET FORTH BELOW. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THESE TERMS AND CONDITIONS.
The Site is not available to persons under the age of 13 or to any Users previously suspended or removed from the Site by OMACRO. BY DOWNLOADING, INSTALLING, ACCESSING, OR OTHERWISE USING THE SITE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE. The content on or from the Site may not be resold or relicensed.
2. MODIFICATION OF TERMS
OMACRO MAY MAKE CHANGES TO THE CONTENT AND SERVICES OFFERED ON THE SITE AT ANY TIME. OMACRO CAN CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS OF SERVICE ON THE SITE AND/OR BY SENDING REGISTERED USERS AN EMAIL NOTICE OF THE CHANGES. ADDITIONALLY, WE MAY NOTIFY YOU THROUGH THE OMACRO NOTIFICATIONS AREA. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING THE SITE. IF YOU DO NOT CEASE USING THE SITE, YOU WILL BE CONCLUSIVELY DEEMED TO HAVE ACCEPTED THE CHANGE. EXCEPT AS STATED ELSEWHERE, ALL AMENDED TERMS SHALL AUTOMATICALLY BE EFFECTIVE AS SOON AS THEY ARE INITIALLY POSTED AND/OR SENT TO REGISTERED USERS, EXCEPT IF OMACRO STATES THAT IT IS GIVING ADVANCE NOTICE OF ANY AMENDED TERM TO BE EFFECTIVE ON A DATE IN THE FUTURE. PLEASE CHECK THESE TERMS AND ANY GUIDELINES PERIODICALLY FOR CHANGES. EXCEPT AS POSTED BY OMACRO TO THE SITE THIS AGREEMENT MAY NOT BE OTHERWISE AMENDED, AND NO TERMS MAY BE WAIVED BY OMACRO, EXCEPT IN A WRITING HAND SIGNED BY YOU AND OMACRO. FOR PURPOSES OF THIS PROVISION, A "WRITING" DOES NOT INCLUDE AN EMAIL MESSAGE AND A SIGNATURE DOES NOT INCLUDE AN ELECTRONIC SIGNATURE.
OMACRO may provide You with notices, including those regarding changes to OMACRO's terms and conditions, by email, regular mail, or postings on the Site. Notice will be deemed given twenty-four hours after email is sent, unless OMACRO is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Site. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Site is deemed given upon the initial posting.
4. OMACRO LICENSE GRANT
OMACRO provides content and services through the Site. Certain information, documents, works, products and services provided on and through the Site, including content, logos, graphics and images (together, the "Materials") and User Content (as defined below) are provided to You by or by way of OMACRO (including as an interactive computer service or online service provider) or the Site and are the copyrighted and/or trademarked work of OMACRO or OMACRO's contributors, that is, any person or entity who makes Materials available on or by way of OMACRO, either publicly or privately. (Materials, User Content, and Third Party Content [as defined below], may be referred to individually and collectively as “Content.”)
OMACRO grants You a limited, personal, non-exclusive and non-transferable license to use and to display the Content and to use the services of the Site solely for Your own personal or business use. Except for the license set forth herein, You acknowledge and agree that You may have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance or in any way exploit any of the Content in any manner, depending upon the terms of the license specified by the User who has made the User Content or Materials available or the Creative Commons license type selected by the User who has made the User Content or Materials available, except possibly for fair use rights (see 11 U.S.C. 107 – see, e.g., http://www.copyright.gov/fls/fl102.html.) In many instances You will have the right to modify, edit, reproduce, alter and use User Content or Materials for Your personal use or for business use. In almost all instances You will not have the right to resell or re-license User Content or Materials. This limited license terminates automatically, without notice to You, if You breach any of these Terms. Upon termination of this limited license, You agree to immediately destroy any downloaded or printed User Content and Materials and all copies thereof, including backup or archival copies. Except as stated herein, You acknowledge that You have no right, title or interest in or to the Site or the User Content or Materials.
4.1 License Grant to Upload
YOU WILL NOT UPLOAD WORKS THAT YOU DO NOT HAVE THE RIGHTS TO: YOU WILL NOT INFRINGE UPON THE COPYRIGHT OF ANY OTHER PERSON OR ENTITY.
Subject to Your compliance with the terms and conditions set out in these Terms, OMACRO hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Site for the uploading, submitting, posting, distributing or otherwise making available authorized digital content, including electronic documents, information, messages, comments or other content or material ("User Content").
User Content is uploaded at Your own risk. Notwithstanding any obligations hereunder of OMACRO to protect User Content with these Terms or security measures, OMACRO cannot guarantee that there will be no unauthorized copying or distribution of User Content nor will OMACRO be liable for any copying or usage of the User Content not authorized by OMACRO or You.
4.2 License Grant to Download
Subject to Your compliance with the terms and conditions set out in these Terms, OMACRO hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to view, and in some instances download and print User Content solely through the Site subject to the license under which such User Content and Materials are made available and distributed.
OMACRO hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to view all Content available (depending upon your company NETWORK status) solely through the Site subject to the license under which such Content is distributed or made available.
4.3 Reservation of Rights
OMACRO reserves all rights not expressly granted in these Terms.
4.4 Prevention of Unauthorized Use
OMACRO reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.
5. USER CONTENT LICENSE GRANT; REPRESENTATIONS AND WARRANTIES
5.1 Retention of Ownership
You retain all of Your ownership rights in User Content owned by You.
5.2 License Grant to OMACRO
Unless otherwise agreed to in a separate written agreement between You and OMACRO signed by an authorized representative of OMACRO by pen on paper:
a) By uploading, making available for upload, distributing or disseminating User Content through the Site (except for confidential price lists), You hereby grant to OMACRO a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, compress or convert for distribution, and otherwise use and sell or license Your User Content, in any media formats and through any media channels, in order to make available, display, perform, reproduce, distribute, publish and promote such User Content in connection with the Site and services offered or to be offered by OMACRO. OMACRO may put restrictions on any of Your User Content and restrict access and ability to download or print to Users. You are reminded that You agree not to upload documents that violate these Terms of Service, including those documents that might infringe upon the copyrights held by others. Such license will apply to any form, media, or technology now known or hereafter developed.
b) Subject to section 5.3, below, the license granted by You terminates as to a specific piece of User Content once You remove or delete such User Content from the Site.
c) By uploading User Content, You hereby warrant that Your User Content is free of any digital rights management (“DRM”) tools, including any software designed to limit the number of times User Content may be made available, displayed, performed, distributed, copied or played. OMACRO may utilize DRM tools in connection with Content, including Your User Content.
5.3 License Grant to Other OMACRO Users
By uploading, making available for upload, distributing or disseminating User Content through the Site, You hereby grant to each User that is authorized to access Your User Content a non-exclusive license to access and use Your User Content under the terms indicated by You when You uploaded or made available for uploading such User Content. Notwithstanding the foregoing, You hereby grant to each User that is authorized to access Your User Content at least a limited, non-exclusive, license to view, download, print, reproduce, and store such User Content in the manner contemplated by these Terms and the Site. Further, unless you clearly state otherwise You grant a license to Users to modify, edit, reproduce, alter and use Your User Content or Materials for personal use or for business use. The foregoing license granted by You terminates as to a specific piece of User Content once You remove or delete such User Content from the Site provided, however, that User rights to such User Content arising out of distributions occurring on or prior to deletion of such User Content from the Site survive any termination or expiration of the license You have granted. In other words, once another User has downloaded or printed Your User Content no one can technologically stop that User from possessing, displaying or otherwise using Your User Content, though OMACRO may attempt to contractually limit or terminate usage. Further, such User Content might remain available by search engines or internet services, for example, that might have cached or archived such User Content, and OMACRO has no obligation to prevent, limit, or do anything about that.
5.4 User Content Representations and Warranties.
You are solely responsible for Your User Content and the consequences of posting or publishing them. By uploading and publishing Your User Content, You affirm, represent, and warrant that:
(1) You are the creator and owner of or have all the necessary licenses, rights, consents, releases and permissions to use and to authorize OMACRO's Users to use Your User Content as necessary to exercise the licenses granted by You in this agreement and in the manner contemplated by OMACRO and these Terms;
(2) Your User Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, or libel any other person or entity. YOU WILL NOT UPLOAD WORKS THAT YOU DO NOT HAVE THE RIGHTS TO: YOU WILL NOT INFRINGE UPON THE COPYRIGHT OF ANY OTHER PERSON OR ENTITY;
(3) Your User Content does not contain any cookies, viruses, adware, spyware, worms, trojans, or other malicious code; and,
Violators of third-party rights may be subject to criminal and/or civil liability. OMACRO reserves all rights and remedies against any Users who violate these Terms, including the right to remove User Content and to terminate Your account and access to the OMACRO site and services.
5.5 Content Disclaimer
7. PASSWORD RESTRICTED AREAS OF THIS SITE
You may to register for a password to log in to this Site and to use certain functions and areas within this Site. As part of the registration process, You may be asked to select a username and password. OMACRO may refuse to grant You a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by OMACRO in its sole discretion. You are responsible for maintaining the confidentiality of Your password and account, and agree to notify OMACRO if Your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for all activities that occur under Your registered account and accounts of Your Users. You agree to immediately notify OMACRO of any unauthorized use of Your account or any other breach of security in relation to this Site known to You. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your username, password, or any credit, debit or charge card number, if applicable), then You agree to immediately change Your password and notify OMACRO. You may be liable for the claims against or losses incurred by OMACRO or others due to any unauthorized use of Your account.
8. THIRD PARTY CONTENT
Certain information and other content that are not User Content may be provided by third party licensors and suppliers to OMACRO ("Third Party Content"). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You acknowledge and agree that You have no right to download, print, cache, reproduce, modify, display, distribute, (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless You have permission from the owner or licensor of the Third Party Content. OMACRO DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LINKS TO THIRD PARTY SITES
This Site may be linked to other sites that are not OMACRO sites ("Reference Sites"). OMACRO is providing these links to You only as a convenience, and OMACRO is not responsible for such linked sites, including, without limitation, the content or links displayed on such sites. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at Your own risk.
10. USER CONTENT
You are responsible for creating and maintaining copies of any User Content or Content that You store on Omacro, including in the private documents storage area on the Site. OMACRO is not responsible for creating or maintaining any such copies, and OMACRO may remove or permanently delete any User Content or other Content at any time and for any reason or no reason at all and is not responsible for loss of User Content or other Content, including without limitation OMACRO’s negligent or intentional deletion of any User Content or other Content.
You further agree that You will not upload to OMACRO’s servers, post or otherwise make available on this Site any material protected by copyright, trade secret, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark, trade secret or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on You. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other claims or harm resulting from Your User Content or Your other Content.
You represent and warrant that: (i) You own all User Content posted by You on or through this Site or otherwise have the right to grant the licenses to OMACRO and its Users set forth herein, and (ii) the posting of Your User Content on or through this Site does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights, trade secrets, or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person or entity by reason of any User Content posted by You to or through this Site.
When submitting User Content to or otherwise using this Site and/or the services, You agree not to, without limitation:
- Use the Site for any purposes other than to disseminate or receive original or appropriately licensed Content and/or to access the Site as such services are offered by OMACRO;
- Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials;
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Use racially, ethnically, or otherwise offensive language, including denigrating sexual orientation or gender identity issues;
- Incite or encourage illegal activity;
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated);
- Post anything that exploits children or minors or that depicts cruelty to animals;
- Post any copyrighted or trademarked materials without the express permission from the owner;
- Post any other party’s trade secrets;
- Post matters that by their confidential or security clearance nature may threaten lives, international, national, state, local or individual security;
- Post outdated materials such as outdated sex offender registries;
- Post Court documents that have been sealed;
- Post a third party’s social security number, credit card number, unpublished phone number, non-public e-mail or physical mail address, medical records or information, tax records, or other confidential or personal information;
- Post any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation;
- Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Site accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the Site, or perform any other similar fraudulent activity;
- Use the Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- Remove, circumvent, disable, damage or otherwise interfere with DRM or security-related features of the Site or User Content, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on the use of the Site or User Content;
- Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, or DRM, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- Modify, adapt, translate or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- Interfere with or damage operation of the Site or any User's enjoyment of the Site, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- Relay email from a third party’s mail servers without the permission of that third party;
- Use any robot, spider, scraper or other automated means to access the Site;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Site;
- Interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
- Post, upload or distribute marketing material, advertisements, spam, content designed to aid search engine optimization, content in HTML format with links or redirects, or other commercial content that generally detracts from the OMACRO experience;
- Engage in any activity or upload commercial content that generally detracts from the OMACRO experience;
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; and
- Artificially inflate or alter the ratings available on this Site or alter any comments posted by others on this Site.
This list of prohibitions provides examples and is not complete or exclusive. OMACRO reserves the right to (a) terminate Your access to Your account, Your ability to post to this Site (or the services) and (b) refuse, delete or remove any Content; with or without cause and with or without notice, for any reason or no reason, or for any action that OMACRO determines is inappropriate or disruptive to this Site or to any other user of this Site and/or services. OMACRO may report to law enforcement authorities any actions that it believes may be illegal, and any reports it receives of such conduct. When legally required or at OMACRO's discretion, OMACRO may cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet. Such termination or suspension may continue so long as OMACRO suspects the violation in question, and OMACRO will have no liability to You for such termination or suspension, including without limitation liability to refund any fees for paid for any Content, documents, features or subscriptions.
These prohibitions do not require OMACRO to monitor, police or remove any User Content or other information submitted by You or any other User, or monitor, police, or report any User activity.
11. UNAUTHORIZED ACTIVITIES
User Content and unauthorized use of any Materials or Third Party Content contained on or available through this Site may violate certain laws and regulations. You agree to indemnify, defend and hold OMACRO and its officers, directors, employees, affiliates, agents, attorneys, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs) OMACRO or any other indemnified party suffers in relation to, arising from, or for the purpose of defending against or avoiding, any claim or demand from a third party that Your use of this Site or the uploading of Your User Content, or the use of this Site or the uploading of User Content by any person using Your user name and/or password (including without limitation, Your participation in the posting areas or, Your User Content) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
12. PROPRIETARY RIGHTS
OMACRO is a trademark of OMACRO in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. The trademarks, logos, and service marks displayed on the Website (collectively the "Trademarks") are the registered and unregistered trademarks of OMACRO, its licensors, suppliers, its users and others. The Trademarks owned by OMACRO, whether registered or unregistered, may not be used in connection with any product or service that is not OMACRO’s in any manner that is likely to cause confusion with customers, or in any manner that disparages OMACRO or dilutes the trademarks or OMACRO. Nothing contained on the Site or herein should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of OMACRO, its licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and OMACRO may aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of OMACRO, Copyright © OMACRO. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor.
13. COPYRIGHT AND TRADEMARK INFRINGEMENTS; NOTIFICATION
OMACRO respects the intellectual property rights of others, and we require You to do the same. OMACRO may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe or are accused of infringing the intellectual property rights of others. If You believe that Your work is the subject of copyright infringement please comply with the requirements of the Digital Millennium Copyright Act and notify OMACRO. If You believe that Your work is the subject of trademark infringement and appears on our Site, please provide OMACRO's designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit OMACRO to locate the material.
- Information reasonably sufficient to permit OMACRO to contact You as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted.
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Omacro reserves the right to assert that it has no obligation under the law to take action with regard to alleged trademark infringement, and to require that You support Your claims of actionable trademark infringement.
OMACRO's agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
10743 Walker Street
Cypress, CA 90630
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. (See, e.g., Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D. Cal. 2004) Diebold agrees to pay $125,000 in damages and fees under Section 512(f).)
OMACRO reserves the right to remove User Content without notifying You if you posted User Content, and without providing You with an opportunity to submit a counter-notification, and You waive any rights or claims that you might have against Omacro for removing Your User Content, including without notifying You of OMACRO’S receipt of a DMCA takedown notice or providing you with an opportunity to submit a counter-notification or complying with the counter-notification procedure set out in the DMCA.
14. DISCLAIMER OF WARRANTIES AND PROMISSORY ESTOPPEL
YOUR USE OF THIS SITE AND/OR THE SERVICES IS AT YOUR OWN RISK. OMACRO SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF THE SITE OR SERVICE TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH THE SITE, OR FOR ANY LACK OF ACCESS TO THE SITE OR SERVICE. NONE OF THE MATERIALS, USER CONTENT, OR THIRD PARTY CONTENT HAVE BEEN VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY OMACRO, AND THEY MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL OR OTHER ERRORS. OMACRO DOES NOT WARRANT THE ACCURACY OR TIMELINESS OF THE MATERIALS, USER CONTENT OR THIRD PARTY CONTENT CONTAINED ON THIS SITE. OMACRO HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE MATERIALS, USER CONTENT AND/OR THIRD PARTY CONTENT, WHETHER PROVIDED BY OMACRO OR OUR LICENSORS. THIS SITE AND OMACRO DO NOT PROVIDE LEGAL ADVICE OR ANY OTHER KIND OF ADVICE. THE MATERIALS, USER CONTENT AND THIRD PARTY CONTENT ON THIS SITE ARE FOR INFORMATIONAL PURPOSES ONLY. ALL CONTENT IS PROVIDED WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING AS TO THEIR LEGAL EFFECT AND COMPLETENESS.
OMACRO, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, THE SERVICES, ANY MATERIALS, USER CONTENT OR THIRD PARTY CONTENT, INCLUDING RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS, THE THIRD PARTY CONTENT AND THE USER CONTENT OF OTHER USERS OF THE SITE. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE SERVICES, MATERIALS, THIRD PARTY CONTENT, USER CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CONTENT IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL OMACRO, INC., OR ITS AGENTS, OFFICERS OR ATTORNEYS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONTENT, EVEN IF OMACRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OMACRO DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
WHILE OMACRO EMPLOYS THE LATEST IN SITE SECURITY INCLUDING THE USE OF A THIRD PARTY WHO AUDITS AND TESTS THE SITE DAILY FOR VOULNERABILIITES, PROTECTION OF USER CONTENT "AS-IS" AND WITH NO ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, HACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES. REGARDLESS OF SUPPOSED OR ACTUAL REPRESENTATIONS MADE TO YOU ORALLY OR IN WRITING BY OMACRO CONCERNING ACTIONS OMACRO MAY OR WILL TAKE, INCLUDING TO REMOVE OR DISABLE ACCESS TO ANY CONTENT AVAILABLE ON OR THROUGH THE SITE, OR TO ACT TO CAUSE SEARCH ENGINES TO STOP INDEXING OR CACHING ANY CONTENT, YOU MAY NOT AND WILL NOT RELY UPON SAME, AND WILL NOT BRING OR PARTICIPATE IN ANY ACTION OR CLAIMS REGARDING SAME, AND WAIVE ALL RIGHTS AND CLAIMS INCLUDING FOR BREACH OR PROMISSORY ESTOPPEL, UNDER LAW AND EQUITY.
15. LIMITATION OF LIABILITY AND DAMAGES
15.1 Limitation of Liability
OMACRO SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS, THIRD PARTY CONTENT OR USER CONTENT TO OR FROM THE SITE. OMACRO SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF THE SITE OR SERVICE TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH THE SITE, OR FOR ANY LACK OF ACCESS TO THE SITE OR SERVICE. OMACRO MAY INTERRUPT THE SITE OR SERVICE AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO YOU WHATSOEVER. IN NO EVENT SHALL OMACRO BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) HOWEVER ARISING, EVEN IF OMACRO KNOWS OR HAS BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGE. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN OMACRO AND RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY REFERENCE SITES.
HESE TERMS DO NOT GRANT YOU OR ANY THIRD PARTY NOT IN PRIVITY TO THIS AGREEMENT ANY GREATER OR ADDITIONAL RIGHTS OR REMEDIES AGAINST YOU OR OMACRO THAN SUCH THIRD PARTY MIGHT OTHERWISE HAVE ABSENT THESE TERMS. THESE TERMS DO NOT GRANT ANY THIRD PARTY BENEFICIARY RIGHTS: SUCH RIGHTS ARE EXPRESSLY DISCLAIMED.
15.2 Limitation of Damages
IN NO EVENT WILL OMACRO OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE SITE OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE WITHOUT LIMITATION LIABILITY FOR NEGLIGENCE.
THESE LIMITATIONS OF DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN OMACRO AND RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY REFERENCE SITES.
15.3 Limitations by Applicable Law
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED, IF THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED APPLY AT ALL.
15.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT OMACRO HAS OFFERED ITS SITE, PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND OMACRO, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND OMACRO. OMACRO WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
16. LOCAL LAWS; EXPORT CONTROL
OMACRO controls and operates this Site from its headquarters in the United States of America and the Materials, User Content and/or Third Party Content may not be appropriate or available for use in other locations. If You use this Site outside the United States of America, You are responsible for following applicable local laws.
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by You that You will not export such software, technical data, or commodities to certain foreign countries without prior approval of such agency. Your rights under this Terms of Service are contingent on Your compliance with this and all other provisions.
OMACRO may, in its sole and unfettered discretion, for any or no reason, and without penalty, terminate and/or suspend Your access to this Site without notice. OMACRO prefers to advise You of Your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by OMACRO in its sole and unfettered discretion, may result in immediate termination of Your access to this Site. If OMACRO terminates Your access to the Site, OMACRO may delete Your user profile(s) but will not be obligated to, and may delete any Content that You have provided in connection with the Site. OMACRO has the right to terminate any password-restricted account for any reason. You will not create multiple user accounts, particularly so as to abuse any of the Omacro policies, guidelines, or systems. If, in violation of these Terms of Service you have created multiple accounts and any single account is terminated by Omacro then Omacro may terminate all of Your accounts. Further, if Omacro terminates any of Your User accounts and You have multiple accounts You will notify Omacro of the usernames of all Your other User accounts and You will not open any new User account(s). IF YOUR ACCOUNT HAS BEEN SUSPENDED OR TERMINATED AND YOU DO OPEN A NEW ACCOUNT YOU WILL BE LIABLE TO OMACRO FOR DAMAGES, OR, AT OMACRO’S OPTION, LIQUIDATED DAMAGES IN AN AMOUNT OF $500.00. Such termination may continue so long as OMACRO suspects the violation in question, and OMACRO will have no liability to You for such suspension, including without limitation liability to refund any fees for paid for any Content, documents, features or subscriptions. You agree that OMACRO will not be liable to You or any third party for any such termination.
17.2 Your Remedies
Your only remedy with respect to any breach by OMACRO of any term in these Terms, or dissatisfaction with (i) the Site, (ii) any term of these Terms, (iii) any policy or practice of OMACRO in operating the Site, or (iv) any content or information transmitted through the Site, is to terminate Your account and discontinue using of any and all parts of the Site.
You agree to indemnify, defend, save, and hold harmless OMACRO, its parent and affiliated companies, contractors, employees, agents, attorneys, and its third-party suppliers, licensors, and partners, from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Site, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. OMACRO reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify, defend or hold harmless OMACRO, and You agree to cooperate with OMACRO's defense of these claims. OMACRO will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
9.1 Governing Law and Jurisdiction
California law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Any disputes relating to these Terms or this Site will be heard in the courts located in Orange County, California. If any of term or provision of these Terms is found to be inconsistent with applicable law, then such term or provision shall be interpreted and modified to reflect the intentions of the parties, and no other terms will be modified.
OMACRO's failure to enforce any term or provision of these Terms is not a waiver of such term. These Terms are the entire agreement between You and OMACRO and supersede all prior or contemporaneous negotiations, discussions or agreements between You and OMACRO about this Site.
Upon termination of these Terms, any provision which, by its nature, logically, or express terms should survive, will survive such termination or expiration, including, but not limited to, sections regarding proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and damages, and governing law and jurisdiction, and all general provisions shall survive any termination of these Terms.
If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by OMACRO without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
19.7 Entire Agreement
This is the entire agreement between You and OMACRO relating to the subject matter herein and will not be modified except in writing, signed by both parties by hand, or by a change to these Terms made by OMACRO as set forth in sections 3 and 4 above.
YOU AND OMACRO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE, EXCEPT FOR OMACRO’S RIGHTS TO SEEK INDEMNIFICATION, DEFENSE, AND TO BE HELD HARMLESS, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU ARE, HOWEVER, REFERRED TO SECTION
19.2, REGARDING YOUR REMEDIES.
19.9 CLASS ACTION
You expressly waive the right and agree not, to bring or participate in, any class action or joinder or consolidation of claims with respect to any dispute under or relating to this Agreement, including in any arbitration.
In accordance with Cal. Civ. Code §1789.3, if you are domiciled in California you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (916)445-1254 or (800) 952-5210.