Acceptance of Terms of Use
These Ocient Website Terms of Use (the “Terms of Use”) govern your use of the Ocient website located at www.ocient.com and its related websites (collectively, the “Website”). The Website is the property of Ocient, Inc. (“Ocient”) and its licensors. By using or visiting the Website, you agree to comply with, and be bound by, these Terms of Use and all applicable laws and regulations. The terms “we,” “us,” “our,” and “ours” refer to Ocient. The terms “you,” “your,” and “yours” refer to the user or viewer of the Website.
[ALTERNATIVE DISPUTE RESOLUTION]
NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS AND CONDITIONS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU MAY HAVE AGAINST OCIENT REGARDING THE USE OF THIS WEBSITE ARE RESOLVED (SEE PARAGRAPH 41 BELOW), INCLUDING AN AGREEMENT AND OBLIGATION TO ARBITRATE DISPUTES AND WAIVE YOUR RIGHT TO PURSUE YOUR CLAIMS AS PART OF A CLASS ACTION, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT TO CLAIMS YOU HAVE AGAINST US TO BINDING ARBITRATION, UNLESS YOU OPT OUT IN ACCORDANCE WITH PARAGRAPH (i). UNLESS YOU OPT-OUT OF ARBITRATION: (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF ON AN INDIVIDUAL BASIS NOT AS PART OF A CLASS ACTION OR OTHER REPRESENTATIVE ACTION.
By using the Website, you represent that (1) you have read, understand, and agree to be bound by these Terms of Use, (2) you are of legal age to form a binding contract with Ocient, (3) all registration information you submit is truthful and accurate and that you will maintain the accuracy of such information, (4) your registration does not and will not violate any applicable law or regulation, and (5) you have the authority to enter into the Terms of Use personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms of Use. In the event you are agreeing to these Terms of Use on behalf of a company or organization, “you,” “your,” and “yours” will refer to the entity you are representing.
The Website is not intended for use by minors, and those under the age of 18 should not proceed to use the Website. We do not knowingly collect personally identifiable information from minors under 18 years of age.
Ocient reserves the right, at its sole discretion, to change, modify, add to or remove portions of these Terms of Use at any time without notice. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Website following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, Ocient grants you a personal, non-exclusive, non- transferable, limited privilege to enter and use the Website as permitted by these Terms of Use.
Please review these Terms of Use carefully. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE, AND SHOULD IMMEDIATELY EXIT, THE WEBSITE.
Content
All information, text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (the “Materials”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Materials (together with the Materials, collectively, the “Content”), contained on the Website, regardless of its source or creation, is owned, controlled or licensed by or to Ocient, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws, and Ocient reserves and retains all rights in and to such Content.
The name and mark “Ocient” and any other names, marks, logos, graphics, designs, webpage designs, and icons of Ocient used in connection with the Website are registered or unregistered trademarks, service marks, or trade dress of Ocient (the “Marks”). You may not use the Marks other than in connection with any incidental use as necessary to view and access the Website. Without limiting the foregoing, you agree not to use any of the Marks or to use or register any other names or marks that are similar to, or likely to cause confusion with, any of the Marks.
Your Use of the Website
You may use information on Ocient products and services (such as data sheets, knowledge base articles, and similar materials) purposely and explicitly made available by Ocient for downloading from the Website, provided that you (1) retain and do not remove proprietary notice language from any copies of such documents, (2) use such information only for your personal, non-commercial informational purposes and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) do not make any additional representations or warranties to any other party relating to such documents.
Except solely as necessary for you to access the Website for its intended purpose, you may not copy, modify, create derivative works of, translate, distribute, transmit, publish, republish, perform, display, post, download, upload, sublicense, transfer, dispose of, or sell the Content or any portion or components of the Website. You further agree not to reverse engineer, decompile or disassemble any portion of the Website except as, and solely to the extent, expressly authorized under applicable law overriding any of these restrictions. Except as expressly set forth in these Terms of Use, these Terms of Use do not, and shall not be interpreted or construed to, grant to you any license to any intellectual property rights or other proprietary rights, including any implied licenses or licenses granted by estoppel or otherwise.
You may not:
use any “deep-link”, “page-scrape”, “robot”, “spider” or other automated device, program, algorithm or methodology, or any similar or equivalent manual process (a) to access, acquire, copy, interrupt, or monitor any portion of the Website or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Website or any Content, or (b) to obtain or attempt to obtain any materials, documents or information through any means not purposely and explicitly made available through the Website; attempt to gain unauthorized access to any portion or feature of the Website, or any other systems or networks connected to the Website or to any Ocient server, or to any of the services offered on or through the Website, by hacking, password “mining” or any other illegitimate means; frame or mirror any part of the Website; probe, scan or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website; take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or Ocient’s systems or networks, or any systems or networks connected to the Website; use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or with any other person’s use of the Website; forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Ocient on or through the Website or any service offered on or through the Website; hold yourself out as, or pretend that you are or that you represent, someone else, or impersonate any other individual or entity, including, but not limited to, Ocient and its employees; or use the Website or any Content, or post any messages or content, for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Ocient or others.
While using the Website you must comply with all applicable laws, rules and regulations. Further, you are prohibited from using the Website or its Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of this Website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of this Website, other websites, or the Internet. We reserve the right to terminate your account or otherwise deny you access to the Website in our sole discretion for any or no reason without notice and without liability.
Any virus, worm, Trojan horse or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of any hardware or software.
Any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation, including, but not limited to, communications in violation of the CAN-SPAM Act. Harvest or collect personally identifiable information or financial information about other users of the Website.
You acknowledge and agree that Ocient reserves the right (but has no obligation) to disclose any circumstances surrounding use of the Website, to any third party (a) in order to operate the Website, (b) in order to protect Ocient, its suppliers or licensees and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, and the Website’s users and visitors, (c) to comply with legal obligations or governmental requests, (d) to enforce these Terms of Use, or (e) for any other reason or purpose.
Ocient reserves the right, in our sole discretion, to deny, restrict, suspend, or terminate your access to all or any part of the Website at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Website if we determine, in our sole discretion, that you have violated these Terms of Use, pose a threat to us, our suppliers or our users, or for any other purpose we determine in our sole discretion.
Commercial Transactions
Additional terms and conditions may apply to purchases of products or services and to specific portions or features of the Website, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms of Use and the terms posted for, or applicable to, a specific portion of the Website or for any products or services offered on or through the Website, the latter terms shall control with respect to your use of that portion of the Website or the specific products or services.
Ocient’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Website should be construed to alter such agreements. Nothing herein shall be construed to obligate Ocient to enter into or engage with you on any commercial transaction. Ocient may make changes to any products or services offered on the Website, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Website with respect to products and services may be out of date, and Ocient makes no commitment to update the materials on the Website with respect to such products and services.
Accounts, Passwords and Security
Certain features or services offered on or through the Website may require you to register for and open an account. You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Ocient immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by Ocient or any other user of, or visitor to, the Website due to someone else using your ID, password or account.
You may not use anyone else’s ID, password or account at any time without the express permission and consent of the holder of that ID, password or account. Ocient cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
Registration for an account is void where the user lacks the eligibility for registration or such registration is otherwise prohibited. A person who is eligible and desires to create an account may, upon consenting to these Terms of Use, submit an application to register in accordance with the procedures set forth by Ocient. Ocient reserves the right, in its sole discretion, to deny, restrict, suspend, discontinue, or terminate your account, with or without prior notice or explanation, for any or no reason, without any liability to you.
Privacy
Ocient’s Privacy Policy applies to use of the Website, and its terms are incorporated into these Terms of Use by this reference. Additionally, by using the Website, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Website may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted. By using the Website, you consent to have your personal data transferred to, and processed by, Ocient.
Links to Third Party Websites
This Website may contain links to other independent third-party websites (“Linked Sites”) and content (including, without limitation, advertising, analytic and marketing APIs, text, photographs, images, graphics, designs, audio, video, games, applications, software, and files) owned by, or originating from, third parties (“Third Party Content”). Such Linked Sites and Third Party Content are not under Ocient’s control, and
Ocient is not responsible for and does not endorse the content of such
Linked Sites, including any information or materials contained on such Linked Sites. Ocient’s inclusion of any Linked Sites and Third Party Content on the Website does not imply approval, partnership, or endorsement of such Linked Sites or Third Party Content by Ocient. If you follow a link to a Linked Site or otherwise access a third party website, you do so solely at your own risk, and Ocient’ Privacy Policy and other policies and practices, including these Terms of Use, do not apply to your use or access of such Linked Sites. Ocient takes no responsibility for third party advertisements or third party applications that are posted on or through the Website, nor does it take any responsibility for the goods or services provided by its advertisers. Reference to any products, services, content, or other information, whether by trade name, trademark, service mark, manufacturer, supplier, or otherwise, does not constitute or imply sponsorship, endorsement, or recommendation by, or any affiliation with, Ocient. You will need to make your own independent judgment regarding your interaction with Linked Sites.
Mobile Services
The Website may include certain features and services that may be available via your mobile phone, including, without limitation: (a) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (b) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the “Mobile Services”). We do not charge for Mobile Services. Your carrier’s normal messaging, data and other rates and fees will still apply. Certain Mobile Services may be incompatible with your carrier or mobile device. By using the Mobile Services you agree that we may communicate with you regarding the Website and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
You agree that in connection with the Mobile Services for which you are registered for, we may send communications to your mobile device regarding us or other parties. Further, we may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify us of any changes to your mobile number and update your account(s) on the Website to reflect this change.
Artificial Intelligence Disclosure
THE SERVICES AVAILABLE ON THIS PLATFORM MAY RELY ON TECHNOLOGY SOLUTIONS THAT ENABLE COMPUTERS, COMPUTER SYSTEMS, AND DIGITAL DEVICES TO PROCESS, CREATE, AND ENHANCE ALGORITHMS THAT LEARN, READ, WRITE, CATEGORIZE, CLASSIFY, PREDICT, ENGAGE, INTERACT, GENERATE, PLAY, ANALYZE, MAKE RECOMMENDATIONS, AND IMITATE WITH APPARENT ACCURACY AND/OR SUGGESTIVE SUPERIORITY. THE OUTPUT REPRESENTING THESE ACTIVITIES ARE MADE TO APPEAR COMPARABLE TO HUMANS PERFORMING SIMILAR TASKS OR SERVICES BY ACCESSING AND PROCESSING AVAILABLE HISTORICAL AND CURRENT DATA AND RE-ITERATIVE PROCESSING FOR PURPOSES OF PRODUCING AND IMPROVING SUCH ACTIVITIES, OUTPUTS, AND APPARENCIES (“AI”).
YOU ACKNOWLEDGE THAT INDUSTRY, REGULATORY, AND LEGAL STANDARDS THAT RELATE TO THE DEVELOPMENT AND USE OF AI ACROSS VARIOUS INDUSTRIES ARE IN VARIOUS STAGES OF DEVELOPMENT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF AI-BASED PRODUCTS AND SERVICES COMPLY WITH YOUR ASSESSMENT OF YOUR BUSINESS RISKS, BUSINESS OBJECTIVES, INDUSTRY STANDARDS, COMPLIANCE REQUIREMENTS, AND OTHER OBLIGATIONS RELATED TO THE USE OF AI. YOU AGREE TO FULLY INDEMNIFY AND HOLD THE OCIENT PARTIES HARMLESS FROM AND AGAINST ANY AND ALL MATTERS RELATED TO YOUR NON-COMPLIANCE WITH SUCH INDUSTRY STANDARDS, COMPLIANCE REQUIREMENTS, OR OBLIGATIONS.
YOU ACKNOWLEDGE THAT OCIENT IS NOT RESPONSIBLE FOR YOUR RELIANCE ON AI-BASED PRODUCTS AND SERVICES, AND YOU WAIVE ALL CAUSES OF ACTION, CLAIMS, AND/OR POTENTIAL CLAIMS AGAINST THE OCIENT PARTIES THAT MAY ARISE FROM YOUR USE OF OR RELIANCE ON ANY OF OUR AI-BASED PRODUCTS OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT OCIENT MAY IMMEDIATELY AND WITHOUT PRIOR NOTICE CEASE PROVIDING AI-BASED PRODUCTS AND SERVICES WITHOUT PENALTY OR FURTHER OBLIGATION TO YOU IF OCIENT DETERMINES IN ITS SOLE DISCRETION THAT CONTINUED PROVISIONS OF SUCH AI-BASED PRODUCTS AND SERVICES MAY VIOLATE LAW OR POSE SIGNIFICANT LEGAL RISKS OR CONTRACTUAL LIABILITY TO THE OCIENT PARTIES.
THE OUTPUT GENERATED BY YOUR USE OF AND YOUR INTERACTION WITH AI MAY BE PRONE TO ERRORS OR UNINTENDED OR NON-RELEVANT RESPONSES, AND ARE SUBJECT TO THE INTEGRITY OF THE UNDERLYING DATA AND INFORMATION ON WHICH OUR AI TECHNOLOGY IS BASED. AS SUCH, THE OCIENT PARTIES DO NOT REPRESENT OR WARRANT THAT THE OUTPUT WILL ADDRESS ALL OR ANY OF YOUR REQUIREMENTS OR EXPECTATIONS CONSIDERED IN YOUR DECISION TO ENGAGE WITH THE PLATFORM, AND THE OCIENT PARTIES DO NOT REPRESENT OR WARRANT THE CONTENT GENERATED IN CONNECTION WITH YOUR SPECIFIC ENGAGEMENT WITH THE PLATFORM.
NOTWITHSTANDING THE OWNERSHIP AND LICENSING RIGHTS SET FORTH IN (“CONTRIBUTIONS”) BELOW, OCIENT SHALL BE THE EXCLUSIVE OWNER OF ALL AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS THAT ARE BASED ON YOUR SPECIFIC INFORMATION INPUT. FOR AVOIDANCE OF DOUBT, AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS INCLUDE, WITHOUT LIMITATION, NEW DATA SETS, DATA RELATIONSHIPS, PREDICTIVE FACTORS, GENERAL LEARNING, AND ALGORITHMS, AND ONLY THE DIRECT AND SPECIFIC RESPONSES AND/OR OUTPUT PRODUCED IN RESPONSE TO YOUR SPECIFIC REQUEST ARE EXCLUDED FROM AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS.
Disclaimers
YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, INCLUDING ANY CONTENT, APPLICATIONS OR MATERIALS PROVIDED BY OR ON THE WEBSITE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND OCIENT HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
OCIENT CANNOT AND DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE WEBSITE. OCIENT SPECIFICALLY DOES NOT MAKE ANY CLAIM OR WARRANTY THAT THE SERVICES OR ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE AND ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY CONTENT OR ANY USER COMMUNICATION OR MESSAGE. OCIENT DOES NOT REPRESENT OR WARRANT THAT APPLICATIONS, CONTENT, DATA, OR MATERIALS ON THE WEBSITE OR DOWNLOADED THROUGH THE WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE OR THAT THE WEBSITE OR ANY APPLICATIONS OR CONTENT PROVIDED BY OCIENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OCIENT CANNOT AND DOES NOT GUARANTEE THAT ANY DEFECTS, ERRORS OR OMISSIONS WILL BE CORRECTED, REGARDLESS OF WHETHER OCIENT IS AWARE OF SUCH DEFECTS, ERRORS OR OMISSIONS.
TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE EXCLUSIONS AND DISCLAIMERS OF WARRANTIES AS SET FORTH IN THIS PARAGRAPH, SOME OR ALL OF THE ABOVE EXCLUSIONS AND DISCLAIMERS MAY NOT APPLY TO YOU, IN WHICH CASE ALL WARRANTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE THAT THE DISCLAIMERS, LIMITATIONS, AND WAIVERS OF LIABILITY SET FORTH IN THIS PARAGRAPH SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THESE TERMS OF USE OR YOUR USE OF THE WEBSITE.
Limitation of Liability
IN NO EVENT SHALL OCIENT, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND/OR ASSIGNS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF, OR RESULTING FROM, YOUR USE OF THE WEBSITE, EVEN IF OCIENT IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS OF USE, OCIENT IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE OR ANY CONTENT, OCIENT’ AGGREGATE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE TOTAL AMOUNT OF ANY FEES WITH RESPECT TO ANY SERVICE OR FEATURE OF OR ON THE WEBSITE PAID BY YOU TO OCIENT IN THE TWELVE MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST OCIENT (BUT NOT INCLUDING THE PURCHASE PRICE FOR ANY OCIENT PRODUCTS OR SERVICES PURCHASED UNDER SEPARATE CONTRACT TERMS), OR (B) US $100.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE EXCLUSIONS AND LIMITATIONS OF DAMAGES AS SET FORTH IN THIS PARAGRAPH AND THESE TERMS OF USE, SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, IN WHICH CASE OCIENT’ LIABILITY TO YOU WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
THESE LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS PARAGRAPH SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OF USE OR YOUR USE OF THE WEBSITE.
COOKIE AND TRACKING TECHNOLOGY NOTICE AND DISCLAIMERS
THIS WEBSITE USES COOKIES AND MAY ALSO USE THE SERVICES OF THIRD-PARTY PROVIDERS THAT DEPLOY COOKIES AND OTHER TRACKING TECHNOLOGIES IN CONNECTION WITH THEIR SERVICES. BY USING THE WEBSITE, YOU CONSENT TO THE PLACEMENT OF COOKIES ON ANY ACCESS DEVICE USED TO ACCESS OUR WEB SITE AND CONSENT TO THE USE OF TRACKING TECHNOLOGIES USED BY US OR OUR THIRD-PARTY SERVICE PROVIDERS.
BY ACTIVATING AND ENGAGING IN ANY DIGITAL ACCESS, DIGITAL SERVICES AVAILABLE AT OUR ONLINE OR DIGITAL PROPERTIES, CLICKING ON THE LINK TO THIS WEBSITE, OR BEING ACTIVELY REDIRECTED TO THIS WEBSITE OR SERVICES VIA ANY OF OUR DIGITAL PARTNERS YOU ACKNOWLEDGE AND EXPRESSLY CONSENT TO OUR USE AND OUR DIGITAL PARTNERS’ USE OF STANDARD INTERNET DATA COLLECTION, PROCESSING AND MARKETING PRACTICES THAT INCLUDES THE USE ANY NUMBER OF TOOLS, INCLUDING, WITHOUT LIMITATION, ANALYTIC DATA COLLECTION TECHNOLOGIES, CHATBOTS, SESSION REPLAY TECHNOLOGIES, IDENTITY GRAPHING, WEB BEACONS, PIXEL-BASED TECHNOLOGIES, AND OTHER SIMILAR TECHNOLOGIES TO COLLECT INFORMATION ABOUT YOUR USE OF THE SERVICES. YOUR ACCEPTANCE AND CONSENT TO OURS AND OUR DIGITAL PARTNERS’ USE OF SUCH TECHNOLOGY INCLUDES YOURS AND ANY OF YOUR AGENTS’ RATIFICATION OF THE USE OF SUCH TECHNOLOGIES IN THE PROCESSES RELATED TO LOADING AND EXECUTING CODE WITHIN YOUR ACCESS DEVICE OR WEB BROWSER THAT IS NECESSARY TO LOAD AND ACTIVATE OUR DIGITAL CONTENT INCLUDING THE INITIAL OR FIRST INSTANCE OF OUR WEBSITE THAT IS LOADED VIA YOUR WEBSITE OR MOBILE BROWSERS. THE INFORMATION WE COLLECT RELATED TO THESE PROCESSES INCLUDES WITHOUT LIMITATION, DEVICE INFORMATION INCLUDING IDENTIFIERS, ACCESS POINT INFORMATION, WEBSITE USAGE INFORMATION, COMPUTER OPERATING SYSTEMS, IP ADDRESSES, THE WEB BROWSER THAT YOU USE TO CONNECT TO OUR WEBSITE AND SERVICE. WITH YOUR CONSENT AND ACKNOWLEDGMENT YOU EXPRESSLY AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST US OR OUR DIGITAL PARTNERS UNDER STATE EAVESDROPPING, WIRETAPPING, OR PEN REGISTER AND/OR TRAP AND TRACE LAWS, OR ANY SIMILAR LAWS RELATED TO PEN REGISTER AND/OR TRAP AND TRACE DEVICES OR PROCESSES TO THE EXTENT SUCH CLAIMS ARISE FROM OUR DIGITAL OPERATIONS. NOTWITHSTANDING YOUR RATIFICATION TO THE INITIAL USE OF OUR DATA COLLECTION TECHNOLOGIES, IF YOU CANNOT ACCEPT THESE TERMS, OR IF YOU WISH TO WITHDRAW YOUR CONSENT, YOU MAY NOT USE OUR WEBSITE, DIGITAL ACCESS, OR DIGITAL SERVICES AT OUR PROPERTIES, AND IN EITHER CASE YOUR CONTINUED USE OF SERVICES REVIVES YOUR CONSENT.
Contributions
By submitting ideas, feedback, suggestions, documents, and/or proposals (“Contributions”) to Ocient through its feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information of yourself or any third party; (b) Ocient is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Ocient shall be entitled to exploit, use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Ocient may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Ocient without any obligation of Ocient to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Ocient under any circumstances.
Indemnity
You agree to indemnify, defend and hold harmless Ocient, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from and against any and all claims, demands, losses, damages, costs and liability, and expenses (including reasonable attorneys’ fees and costs of investigation) arising out of or in connection with (a) your use of the Website, (b) your breach of these Terms of Use, including your breach of any covenant, representation, warranty, term, or condition set forth herein, including, without limitation, the obligations set out in the section “Your Use of the Website,” or (c) your violation of any law or regulation or of any third party rights, including infringement, libel, misappropriation, or other violation of any third party’s intellectual property or other legal rights. Ocient reserves the right, however, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Ocient’ defense of such claim, and in no event may you agree to any settlement affecting Ocient without Ocient’s written consent.
Suspension or Termination of Access to the Website
You agree that Ocient may, in its sole discretion and with or without prior notice, suspend or terminate your access to the Website and/or block your future access to the Website if we determine that you have violated these Terms of Use. Additionally, Ocient may, in its sole discretion and with or without prior notice, suspend or terminate your access to the Website for cause, including, but not limited to, the following reasons: (1) requests by law enforcement or other government agencies, (2) discontinuance or material modification of the Website or any service offered on or through the Website, (3) unexpected technical issues or problems, or (4) a request by you to terminate your account.
DMCA Notice of Infringement
Ocient respects the intellectual property rights of others, and we expect users of our Website do the same. If you believe that the use or display of any Content on the Website infringes any copyright that you own or control, please contact Ocient’ designated agent for copyright claims at:
Ocient Inc.
20 N. Wacker Drive, Suite 1200, Chicago, IL 60606
Attn: Legal Department, DMCA legal@Ocient.com
When providing notification of alleged infringement of a copyright that you own or control (“DMCA Notice”), please provide Ocient’ designated agent the following information:
A description of the copyrighted work that you claim has been infringed and a description of the infringing activity; A description of where the material that you claim is infringing is located, such as the URL where it is posted; Your name, address, telephone number, and email address;
A statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; A statement by you, made under penalty of perjury, that the above information in your DMCA Notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
Governing Law; Disputes
These Terms of Use and the relationship between you and Ocient shall be governed by the laws of the State of Illinois as applied to agreements made, entered into and performed entirely in Illinois by Illinois residents, not withstanding your actual place of residence. All lawsuits arising from or relating to these Terms of Use or your use of the Website shall be brought in the Federal or State courts located in Chicago, Illinois, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.
[ALTERNATIVE DISPUTE RESOLUTION]
DISPUTE RESOLUTION
Consent to Mandatory Arbitration, Class Action Waiver, and Dispute Resolution Agreement.
PLEASE READ THE FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
(a) Mandatory Informal Dispute Resolution. We are available by email at legal@ocient.com to address any concerns you may have regarding your use of the Website, App and/or Services. Most concerns may be quickly resolved in this manner. We and you (each a “party” and together, the “parties”) shall use best efforts to settle any dispute, claim, question or disagreement directly through consultation and good faith negotiations as follows, which shall be a precondition to either party initiating a lawsuit or arbitration. To start the Informal Dispute Resolution process, you must send an individualized Notice of Dispute to us at legal@@ocient.com that includes (1) your name, phone number, email address for and (2) a description of the dispute or disagreement and how you’d like it resolved. If Ocient has a dispute or disagreement with you, we will send a Notice of Dispute with the same information to the email address we have on file for you. Once a complete Notice of Dispute has been received, the recipient has 60 days to investigate the claims. If either side requests a settlement conference during this period, then you and Ocient must cooperate to schedule that meeting by phone or videoconference. You and Ocient each will personally participate and can each bring counsel, but the conference must be individualized, even if the same attorney(s) or law firm(s) represent multiple parties. For the claims in the Notice of Dispute, any statute of limitations will be tolled from the date the notice is received until the later of (i) 60 days, or (ii) after a timely requested settlement conference is completed (“Informal Resolution Period”). An arbitration cannot be filed until the Informal Resolution Period has ended, and a court can enjoin the filing or prosecution of an arbitration in breach of this Section. This provision will continue to apply even after a valid opt out of the mandatory arbitration agreement.
(b) Agreement to Binding Arbitration. If the parties do not reach an agreed upon solution within the Informal Resolution Period pursuant to Paragraph (a) above, then either party may initiate binding, individual arbitration. All claims arising out of or relating to this agreement (including its formation, performance and breach), the parties’ relationship with each other, and/or the Website, App or Services, including any products, data, services, content, or statements accessed, transmitted, listed, bought, sold, or offered through the Website, App, or Services (“Dispute”) shall be finally settled by binding arbitration administered by the American Arbitration Association on a confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement, including but not limited to any claim that all or any part of this agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. The arbitrator will not be bound by decisions in other arbitrations. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction, except for any right of appeal as provided by the Federal Arbitration Act or applicable law. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act.
(c) THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, AND YOU TIMELY PROVIDED TPS WITH A NOTICE OF DISPUTE, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO THE AAA. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEYS’ FEES IN CERTAIN CIRCUMSTANCES. FOR ALL OTHER CLAIMS, THE COSTS AND FEES OF ARBITRATIONS SHALL BE ALLOCATED IN ACCORDANCE WITH THE ARBITRATION PROVIDER’S RULES, INCLUDING RULES REGARDING FRIVOLOUS OR IMPROPER CLAIMS. IF, AT ANY TIME, THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF YOUR CLAIM OR THE RELIEF SOUGHT IS FRIVOLOUS OR BROUGHT FOR AN IMPROPER PURPOSE (ACCORDING TO THE STANDARDS OF FEDERAL RULE OF CIVIL PROCEDURE 11(B)), THEN PAYMENT OF ALL SUCH FEES SHALL BE GOVERNED BY THE AAA RULES AND YOU AGREE TO REIMBURSE TPS FOR ALL FUNDS PREVIOUSLY PAID BY IT THAT ARE OTHERWISE YOUR OBLIGATION TO PAY UNDER THE AAA RULES.
(d) THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
(e) Class Action and Class Arbitration Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. Except in a Batch Arbitration, described below, the arbitrator can award damages and other relief only in favor of the individual claimant, only to the extent necessary to provide relief warranted by the claimant’s individual claims, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Paragraph (b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(f) Mass Arbitrations. Mass arbitrations, as defined by the AAA, shall be governed by the AAA Mass Arbitration Supplementary Rules. The parties agree that the global mediation required by these rules shall occur during the initiation phase of the mass arbitration (prior to the appointment of merits arbitrators), and the global mediation shall act as a stay of the mass arbitration until the mediation is concluded.
(g) Batch arbitration. If twenty-five (25) or more claimants submit a Notice of Dispute or file arbitrations raising similar claims within a 120 day period (i.e., with the same or similar facts or events and legal issues) and are represented by the same or coordinated counsel, the disputes must be arbitrated in batches of up to one hundred (100) claimants each (“Batch”). Upon notice from either side, the AAA shall group the claimants into: (1) a single Batch (if there are 25-100 claimants), or (2) Batches of one hundred (100) claimants each, with a smaller, final Batch consisting of any remaining claimants (if there are more than hundred (100) claimants). The AAA shall thereafter provide for the resolution of each Batch as a single consolidated arbitration with a single arbitrator appointed by the AAA, one set of Arbitration Fees, and (if the arbitration is not documents-only) one hearing per Batch to be held by videoconference (or in a place decided by the arbitrator). The parties will cooperate in good faith to implement this process and minimize the time and costs of arbitration, and agree that the AAA Mass Arbitration Supplementary Rules shall apply, except as provided in this Section. Any challenges to administrative determinations by AAA shall be heard by a single process arbitrator. If this “Batch Arbitration” section is deemed unenforceable as to a particular claimant or Batch, then it shall be severed as to that claimant or Batch, and those parties shall arbitrate in individual proceedings.
(h) Exceptions – Intellectual Property Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief under law or in equity (including without limitation preliminary or other injunctive relief) in any court of competent jurisdiction for disputes or claims arising out of the alleged infringement of either party’s intellectual property rights.
(i) Exceptions – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims court for disputes or claims within the scope of that court’s jurisdiction.
(j) 30-Day Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Paragraphs (b), (c), (d) and (e) by sending written notice of your decision to opt-out to the following address: Ocient [_________________________________], Attention: Legal Department. The notice must be sent within thirty (30) days after the first use of any our Services, including, without limitation, account registration or activation, or Agreement to additional terms. If you opt-out of these arbitration provisions, we also will not be bound by them. Any opt out request received after the deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
(k) The parties also expressly agree that, to the extent that the arbitration provisions set forth in Paragraph (b) do not apply, these Terms shall be construed in accordance with the laws of the State of Illinois without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of Illinois. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. This provision will continue to apply even after a valid opt out of the mandatory arbitration agreement. THE PARTIES ALSO EXPRESSLY AGREE THAT, TO THE EXTENT THAT THE ARBITRATION PROVISIONS SET FORTH IN PARAGRAPH 17(b) ABOVE DO NOT APPLY, THE PARTIES EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY.
(l) Modifications. Any modification to this section shall not apply to any disputes of which we are aware or reasonably should be aware at the time of such modification, and will only apply to all disputes arising after such modification, regardless of whether such disputes arise from events or omissions that occurred before such modification.
(m) Continuation. This provision shall survive the termination of your service with Ocient, our parents, subsidiaries, and affiliates.
Export Control
You acknowledge and agree that products, services and technology provided by Ocient are subject to the export control laws and regulations of the United States. You agree to comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Website or any portions or Content thereof, either directly or indirectly, to any country in violation of such laws and regulations. You may not use, export, import or transfer the Website or any portions or Content thereof except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access, and any other applicable laws. In particular, but without limitation, the Website and any portions or Content thereof may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Website, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also acknowledge and agree that you may not use the Website or any portions or Content thereof for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
Miscellaneous
These Terms of Use operate to the fullest extent permissible by applicable law. If any provision of these Terms of Use are deemed to be invalid, void or unenforceable, such provision shall be deemed severed or limited to the minimum extent necessary and the remaining provisions of these Terms of Use shall not be affected and shall remain in full force and effect. These Terms of Use, along with the Privacy Policy referenced herein, constitute the entire agreement between you and Ocient with regard to your use of the Website, and any and all other written or oral agreements, proposals or understandings previously existing between you and Ocient with respect to your use of the Website are hereby superseded and cancelled. Ocient will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. The headings used for the sections in these Terms of Use are for convenience and reference purposes only and shall in no way affect the meaning or interpretation of these Terms of Use. Ocient’ failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Ocient of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Ocient and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties. These Terms of Use and any rights granted hereunder may not be transferred or assigned by you, and any such transfer or assignment shall be void and ineffective. Ocient may freely assign these Terms of Use and its rights and obligations hereunder without restriction. The rights and obligations of these Terms of Use which by their nature should survive, shall so survive any termination of your use of the Website. The relationship between you and Ocient is that of independent contractors, and neither these Terms of Use nor any actions by either party should be interpreted as creating an agency or partnership relationship.