eXtreme Outer Vision Terms of Service
The following are the terms and conditions for use of the eXtreme Outer Vision services described herein (the "Services") between eXtreme Outer Vision, LLC ("eXtreme Outer Vision") and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). BY USING OUR SERVICES, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICES ("AGREEMENT"). Our Services are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Please read them carefully.
Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.
Using our Services
You must follow any policies made available to you within the Services.
Don't misuse our Services. For example, don't interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Don't remove, obscure, or alter any legal notices displayed in or along with our Services.
Our Services display some content that is not eXtreme Outer Vision's. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don't assume that we do.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
Some of our Services are available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.
"Account" refers to the billing account for the Services.
"Calculator Data" means the data concerning the characteristics of computer components selected by You that is collected through use of the Services and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying proprietary documentation made available to You by eXtreme Outer Vision for use with the Processing Software, including any documentation available online or otherwise.
"Processing Software" means the proprietary eXtreme Outer Vision's Software and any upgrades to such, which analyses the Calculator Data and generates the Results.
"Result" means the resulting analysis shown at http://outervision.com (or such other URL eXtreme Outer Vision may provide from time to time) provided by Processing Software. The details of ouput contained in a Result varies with the edition of the Services.
"Servers" means the servers controlled by eXtreme Outer Vision and/or hosting provider upon which the Processing Software and Calculator Data are stored.
"Software" means the Processing Software.
2. FEES AND SERVICES
You agree to pay or have paid all fees and charges incurred in connection with your subscription for Services (where applicable) at the rates in effect when the charges were incurred. All fees and charges are non-refundable.
eXtreme Outer Vision may change its fees and payment policies for the Services from time to time including but not limited to other fees charged to eXtreme Outer Vision by 3rd party vendors for the inclusion of data in the Services. The changes to the fees or payment policies are effective upon availability of such changes which will be posted at http://outervision.com (or such other URL eXtreme Outer Vision may provide from time to time). Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by eXtreme Outer Vision will be included in the amount owed.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY
You may need eXtreme Outer Vision Account in order to use some of our Services.
To protect your eXtreme Outer Vision Account, keep your password confidential. You are responsible for the activity that happens on or through your eXtreme Outer Vision Account. Try not to reuse your eXtreme Outer Vision Account password on third-party applications. If you learn of any unauthorized use of your password or eXtreme Outer Vision Account, please contact us immediately.
From time to time, eXtreme Outer Vision's support staff may log in to the Services under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
4. PERSONAL AND COMMERCIAL USE
Our Services are made available for your personal as well as commercial use as long as you or your customers access Services via original http://outervision.com website.
Subject to the terms and conditions of this Agreement, You may remotely access, process and print the results of Services at http://outervision.com (or such other URL eXtreme Outer Vision may provide from time to time). Your use of and access to the Services (which may include, without limitation, the Software, Documentation and the Results) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:
You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, Calculator Data or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Processing Software, Calculator Data, the Documentation or the Services; (iv) remove any proprietary notices or labels on the Software or placed by the Services; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services or the Software; (vi) claim ownership and/or creation of the Software, Calculator Data and/or Services; (vii) take the Result and reformat and display it, or mirror the eXtreme Outer Vision home page or Services and/or Result pages on your Web site; You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Calculator Data, Service and Results.If you want to make commercial use of integrated or branded eXtreme Outer Vision Services, you must enter into an agreement with eXtreme Outer Vision to do so in advance. Please contact us for more information.
eXtreme Outer Vision reserves the right to monitor your Services subscription usage. eXtreme Outer Vision also reserves the right to void your Services subscription/technical support and/or pursue legal action if any part of this agreement has been violated.
5. FRAUDULENT ACTIVITY
Without limiting any other remedies, indemnities or causes of action available to eXtreme Outer Vision and its affiliates, if you are determined to have engaged in fraudulent activity in connection with our site, services, accounts or third party payment processing sites (including without limitation furnishing false or misleading data or engaging in any activities not in good faith with respect to online services or third parties) or if you otherwise breach this Agreement, eXtreme Outer Vision may suspend, terminate or delete your account(s). All fees and charges paid are non-refundable.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by eXtreme Outer Vision, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify eXtreme Outer Vision of any unauthorized use of Your account or any other breach of security known to You.
7. INFORMATION RIGHTS AND PUBLICITY
8. REFUND POLICY
The Services fees and charges are non-refundable.
9. INDEMNIFICATIONYou agree to indemnify, hold harmless and defend eXtreme Outer Vision, at Your expense, any and all third-party claims, actions, proceedings, allegation, and suits brought against eXtreme Outer Vision or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by eXtreme Outer Vision or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Any fraud or manipulation, or other breach of any term or condition of this Agreement by you, (ii) Your use of the Services, (iii) Your violations of applicable laws, rules or regulations in connection with the Services, or (iv) Your Brand Features. In such a case, eXtreme Outer Vision will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. eXtreme Outer Vision reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
10. THIRD PARTIES
If You provide access to Your Account or any portion thereof to any third party or use the Services to collect information on behalf of any third party ("Third Party"), whether or not You are authorized to do so by eXtreme Outer Vision, the terms of this Section 9 shall apply to You.
If You use the Services on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Calculator Data in the applicable account, and (c) You shall not disclose Third Party's Calculator Data to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. eXtreme Outer Vision make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to eXtreme Outer Vision, the Services, the Software or the Results, or use thereof. You agree to indemnify, hold harmless and defend eXtreme Outer Vision, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against eXtreme Outer Vision or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by eXtreme Outer Vision, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Services, the Software or Results to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Services, the Software or Results; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Results.
11. DISCLAIMER OF WARRANTIES
The information and services included in or available through the Services, including the Results, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. eXtreme Outer Vision and/or its respective suppliers may make improvements and/or changes in the Services or Software at any time, with or without notice. eXtreme Outer Vision does not represent or warrant that the Services will be uninterrupted or error-free, that defects will be corrected, or that the Services, the Software or any other software on the Server are free of viruses or other harmful components. eXtreme Outer Vision does not warrant or represent that the use of the Services or the Results will be correct, accurate, timely or otherwise reliable. You specifically agree that eXtreme Outer Vision shall not be responsible for unauthorized access to or alteration of the Calculator Data.
THE SERVICES, THE SOFTWARE AND RESULTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY EXTREME OUTER VISION AND/OR ITS AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE SOFTWARE, THE DOCUMENTATION AND RESULTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. EXTREME OUTER VISION DOES NOT WARRANT THAT THE SERVICES, THE SOFTWARE OR RESULTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY
EXTREME OUTER VISION WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOST HARDWARE THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF EXTREME OUTER VISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Without limiting the foregoing, under no circumstances shall eXtreme Outer Vision or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
eXtreme Outer Vision's total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $1.
13. SERVICES LEVELS
eXtreme Outer Vision does not guarantee the Services will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond eXtreme Outer Vision's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where eXtreme Outer Vision or Your servers are located or co-located.
14. PROPRIETARY RIGHTS NOTICE
The Services, which includes but is not limited to the eXtreme Outer Vision Software and all intellectual property rights in the Services are, and shall remain, the property of eXtreme Outer Vision. All rights in and to the Processing Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by eXtreme Outer Vision and its licensors without restriction, including, without limitation, eXtreme Outer Vision's right to sole ownership of the eXtreme Outer Vision Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) distribute or use the Services outside of the scope of this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Services; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of eXtreme Outer Vision; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with eXtreme Outer Vision other than in the name of eXtreme Outer Vision, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services.
15. TERM and TERMINATION
Either party to the Agreement may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, eXtreme Outer Vision will cease providing the Services, and You will certify thereto in writing to eXtreme Outer Vision within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Services rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) Your Account will no longer be accessable to You.
16. MODIFICATIONS TO TERMS OF SERVICES AND OTHER POLICIES
eXtreme Outer Vision reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Services, at any time, by posting the new agreement to the site located at http://outervision.com (or such other URL as eXtreme Outer Vision may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of eXtreme Outer Vision, (ii) You accept updated terms online, or (iii) You continue to use the Services after eXtreme Outer Vision has posted updates to the Agreement or to any policy governing the Services.
17. MISCELLANEOUS; APPLICABLE LAW AND VENUE
eXtreme Outer Vision shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the state of Georgia without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Georgia law, rules, and regulations, Georgia law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Fulton County , Georgia.