Effective date: January 1, 2025
Last updated date: January 1, 2025
1. Introduction
Welcome to Optery. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: support@optery.com
Address: 6150 Center St #121, Clayton, CA 94517
These Terms of Service (the “Terms”) are a binding contract between you and OPTERY, INC. (“Optery,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. If you already created an Optery account, but no longer agree to the Terms, you must delete your account from the Login & Security section of your Account page here: https://app.optery.com/account or contact us at support@optery.com and we will delete your account for you.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. Will these Terms ever change?
We are continually trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time. If we make materially significant changes to these Terms, we will send you an email notification along with a summary of changes to the primary email address on your account.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services and you must delete your account from the Login & Security section of your Account page here: https://app.optery.com/account or contact us at support@optery.com and we will delete your account for you. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
3. What about my privacy?
Optery takes the privacy of its users very seriously. For the current Optery Privacy Policy, please click here.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at support@optery.com.
4. What are the basics of using Optery?
You may be required to sign up for an account, select a password and user name (“Optery User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Optery User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google and others (e.g., for purposes of using a “Single Sign-On” function), using the credentials provided to you by your employer or any other person or entity with which you are affiliated that has an agreement with us in order to provide you with the Services (such entity, “Your Organization”). By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract, and are at least eighteen (18) years of age. If you are not at least eighteen (18) years old, you are prohibited from using our Services.
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Optery User ID, account or password with anyone, and you must protect the security of your Optery User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Optery User ID and account.
If your account is provided by Your Organization, from time to time, Your Organization may authorize you to use the Services on behalf of or for the benefit of another individual member of Your Organization (each such individual, a “Delegated Member”). By using the Services on behalf of or for the benefit of a Delegated Member—including by providing us any Personal Data (as defined in our Privacy Policy) relating to any such Delegated Member—you represent and warrant that you have received and will maintain all rights and authorizations from Your Organization and from the Delegated Member to use the Services on behalf of or for the benefit of such Delegated Member and for us to provide the Services to you in relation to the Delegated Member.
5. What about messaging?
As part of the Services, you will receive communications through the Services, including messages that Optery sends you (for example, via email). When signing up for the Services, you will receive a welcome message with instructions on how to stop receiving non-required messages. You may configure your Notification Preferences or opt out of non-required messages at any time by following the Communication Preferences or Unsubscribe links at the bottom of every email we send or by updating the Notification Preferences section of your Account page here: https://app.optery.com/account. We may also send you required account updates such as refund confirmations and notifications of policy updates, regardless of your Notifications Preferences settings. If you do not wish to receive any communications from Optery, you must delete your account from the Login & Security section of your Account page here: https://app.optery.com/account or contact us at support@optery.com and we will delete your account for you.
6. How do Optery Removal Services work?
Optery provides services for submitting personal information opt out, data deletion, do not sell, do not share, suppression and removal requests to lists of third-party data brokers and information aggregators on your behalf (the “Removal Service(s)”). The Removal Services are listed on our Pricing pages (e.g. Core, Core Pro, Extended, Extended Pro, Ultimate, Ultimate Pro), located at the following links: https://www.optery.com/pricing/ and https://www.optery.com/business-pricing/.
At any time and without notice Optery reserves the right to modify the Removal Services, this includes adding and removing data brokers and information aggregators from the Removal Services and adding and removing features and functionality to or from the Removal Services. You acknowledge and agree that our Removal Services are subject to change on an ongoing basis and that we are not required to send notifications for each change to the Removal Services.
By using Optery’s Removal Services, you acknowledge and agree that:
(a) Optery will use good faith, reasonable efforts to provide the Removal Services, but there is no guarantee or warranty of any kind that third parties will honor or comply with the opt out, data deletion, do not sell, do not share, suppression or removal requests;
(b) It is not possible for Optery to remove 100% of your personal information from the Internet, or even from all of the data brokers and information aggregators covered by the Removal Services;
(c) Except when you use the Removal Services on behalf of a Delegated Member, the Removal Services will be provided for data broker profiles primarily representing you and will not be provided for data broker profiles primarily representing someone other than you;
(d) It can sometimes take many months for third parties to remove your personal information from their systems and web sites;
(e) Except when you use the Removal Services on behalf of a Delegated Member, each account’s Removal Services may only be used for a single individual person. Name variations and aliases supported by each account’s Removal Services may only be used for a single individual person who has utilized different names during their lifetime, but are not permitted to be used to provide Removal Services to multiple different people or for individuals other than the individual account owner of the Removal Services; and
(f) You are at least eighteen (18) years of age. If you are not at least eighteen (18) years old, you are prohibited from using our Services.
As a condition to providing you with Removal Services, (i) you must provide your Personal Data (as defined in our Privacy Policy) such as full name, birth year and current city and state of residence to Optery and (ii) Optery must send this information to the data brokers and information aggregators covered by the Removal Services, and occasionally to government agencies such as the Federal Trade Commission (“FTC”) or State Attorney General offices to file complaints against data brokers and information aggregators not complying with opt out, data deletion, do not sell, do not share, suppression and removal requests. This information is required by the data brokers and information aggregators in order to locate your record(s) and remove you from their database(s), and by the government agencies to receive complaints against data brokers and information aggregators not complying with opt out, data deletion, do not sell, do not share, suppression and removal requests. We cannot control, guarantee or warranty how these third-parties will treat your Personal Data or what they will do with it. By utilizing Optery Removal Services, you approve to submit your Personal Data to data brokers and information aggregators for the purposes of submitting opt out, data deletion, do not sell, do not share, suppression and removal requests. If you do not wish Optery to submit your Personal Data to data brokers and information aggregators for the purposes submitting opt out, suppression and removal requests, then you should not use Optery’s Removal Services.
7. How do I authorize Optery to interact with third-parties on my behalf?
By using Optery’s Removal Services, you agree to designate and appoint Optery to represent you as your authorized agent (“Authorized Agent“) to act on your behalf submitting and managing your data preferences requests and exercising your data rights under your jurisdictional data privacy law(s) for the sole purpose of providing the Services, including:
(a) submitting opt out, suppression, removal, and do not sell requests to companies and organizations for your data;
(b) submitting data deletion requests to companies and organizations for your data;
(c) submitting data subject access requests to companies and organizations for your data and requesting a copy of your data from companies and organizations;
(d) communicating on your behalf with companies and organizations regarding the status of your data rights and preferences requests; and
(e) signing documents regarding your data rights and preferences requests.
Optery’s designation and appointment as your Authorized Agent will continue in full force until your Removal Services are cancelled by you or by us. You may cancel your Removal Services at any time from the Plans & Billing section of your Account page. If you do not agree to allow us to act as your Authorized Agent, certain aspects of the Services may not be available to you.
You understand that Optery is not your attorney, and that you have the right to seek advice from an attorney at any time that you choose.
You agree to revoke any previous agreements designating or appointing other parties as your Authorized Agent for the purpose of executing your data preferences and rights.
Optery also offers a Limited Power of Attorney document that can be electronically signed for the purpose of appointing Optery as your Authorized Agent for submitting your data rights requests. When that document is signed, its terms supersede the Authorized Agent terms included in this section of these Terms.
8. Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Optery);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Optery;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your Optery User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
9. What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Optery’s) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Optery owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
10. Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Optery. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Optery is not responsible for such risks.
Optery has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Optery will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Optery is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Optery, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
11. Will Optery ever change the Services?
We’re continually trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
12. Do the Services cost anything?
The Services may be free or we may charge a subscription fee for using the Services, which may be paid by you or Your Organization. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
(a) Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please see our Pricing pages (https://www.optery.com/pricing/ and https://www.optery.com/business-pricing/) for a description of the current Paid Services. If you are paying for the Paid Services directly (“User Paid Services”), any payment terms presented to you in the process of using or signing up for such Service are deemed part of these Terms. For example, some User Paid Services may charge a fee for downloading or installing the Services through the App Store (as defined below) linked to your specific device. You agree to comply with, and your license to use our mobile application is conditioned upon your compliance with, such App Store terms and conditions. Any refunds relating to the applications or inquiries regarding refunds relating to the applications shall be handled solely by the applicable App Store in accordance with such App Store’s terms and conditions.
(b) Billing. For User Paid Services, we use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the User Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Stripe, Inc. as our Payment Processor. You can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use User Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
(c) Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
(d) Recurring Billing. Some of the User Paid Services will involve recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, CANCEL RECURRING BILLING OR CHANGE YOUR PAYMENT METHOD, GO TO THE PLANS & BILLING SECTION OF YOUR ACCOUNT PAGE HERE: https://app.optery.com/account
(e) Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS (https://app.optery.com/account). IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF USER PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR USER PAID SERVICES AS SET FORTH ABOVE.
(f) Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
(g) Auto-Renewal for User Paid Services. Unless you opt out of auto-renewal, which can be done by cancelling the subscription of your User Paid Service from your Account page (https://app.optery.com/account), any User Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your User Paid Services at any time, cancel the subscription of your User Paid Service from your account page (https://app.optery.com/account) or, for mobile applications, cancel your subscription in the subscription management section of the applicable App Store. If you terminate a User Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE USER PAID SERVICE THROUGH YOUR ACCOUNT SETTINGS (https://app.optery.com/account) OR TERMINATE YOUR OPTERY ACCOUNT BEFORE THE END OF THE RECURRING TERM. USER PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, OPTERY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
(h) Reaffirmation of Authorization. Your non-termination or continued use of a User Paid Service reaffirms that we are authorized to charge your Payment Method for that User Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the User Paid Service.
(i) Refunds. Optery’s refund policies can be found in the Billing & Payments section of our Help Desk here and here.
(j) Free Trials and Other Promotions. Any free trial or other promotion that provides access to a User Paid Service must be used within the specified time of the trial. You must stop using a User Paid Service before the end of the trial period in order to avoid being charged for that User Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a User Paid Service, please contact us at support@optery.com.
(k) Your Organization Paid Services. Some Services may be paid for by Your Organization (“Organization Paid Services”). The payment terms for Organization Paid Services will be governed by the agreement between us and Your Organization. Your use of Organization Paid Services may be discontinued if Your Organization stops paying for such Organization Paid Services or if your association with Your Organization is terminated. If you would like to continue using the Services after such discontinuation, you may change your account settings such that such Services will become User Paid Services.
(l) Fraudulent or Unauthorized Transactions. We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected, or for violating our Terms.
13. What if I want to stop using the Services?
You’re free to do that at any time by deleting your account from the Login & Security section of your Account page here: https://app.optery.com/account or contact us at support@optery.com and we will delete your account for you; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Optery is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Optery has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination will result in destruction of all Content associated with your account, so keep that in mind before you decide to terminate your account.
’Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
14. What about Mobile Applications and In-App Purchases?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
Through our mobile applications, you may purchase (“In-App Purchase”) certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html). Optery is not a party to any In-App Purchase.
15. I use the Optery App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
(a) Both you and Optery acknowledge that the Terms are concluded between you and Optery only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Optery, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Optery, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Optery acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both you and Optery acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
16. What else do I need to know?
Warranty Disclaimer. Optery and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Optery and all such parties together, the “Optery Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Optery Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Optery Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY OPTERY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE OPTERY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO OPTERY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Optery Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we may attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Optery’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Optery and limits the manner in which you can seek relief from Optery. Both you and Optery acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Optery’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Contra Costa County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Optery will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Optery will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Optery may assert claims, if they qualify, in small claims court in Contra Costa County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND OPTERY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Optery are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Optery over whether to vacate or enforce an arbitration award, YOU AND OPTERY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Optery is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 6150 Center St #121, Clayton, CA 94517 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Optery to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Optery agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Contra Costa County, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Optery.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Optery may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Optery agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Optery, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Optery, and you do not have any authority of any kind to bind Optery in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Application and the arbitration agreement, you and Optery agree there are no third-party beneficiaries intended under these Terms.