Terms and Conditions

Standard Terms and Conditions

These Standard Terms and Conditions contain the complete and exclusive statement of the terms and conditions relating the sale of products or components thereof (collectively, the “goods”) by OrthoAccel Technologies, Inc. (“Seller”) to a buyer (“Buyer”). Any additional or different terms shall not be part of an order unless approved by Seller in writing:

1. Acceptance, Waiver, Modification, Interpretation and Construction.

Orders that are accepted, and contracts that are formed, are accepted or formed at Seller’s offices on the terms and conditions set forth herein. Buyer shall be deemed to consent to these standard terms and conditions as a condition to Seller’s acceptance of any order. These standard terms and conditions shall control over any contrary or additional terms and conditions on any order or other document of Buyer, and all such additional terms and conditions are hereby objected to and shall not be binding on Seller. Waiver of any term or condition of sale shall not constitute waiver of any other term or condition or legal remedy of Seller. Seller’s failure to object to any communication or part thereof from Buyer shall not be deemed to be an acceptance of any provisions thereof or a waiver of any of the terms hereof. Any act by Buyer of confirmation of any transaction contemplated hereby, including any order issued in response to a quotation of Seller, shall constitute Buyer’s acceptance of these standard terms and conditions. No modification of any order or contract shall be binding unless contained in a written document that is signed by both parties and that specifically refers to the order or contract to be modified. Orders and contracts shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Texas without reference to its choice of law rules. Terms used herein that are defined in the Uniform Commercial Code shall have the meanings given to them in the Uniform Commercial Code.

SELLER’S QUOTATION UNDER THE PURCHASE ORDER AND TOGETHER WITH THESE STANDARD TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR AGREEMENTS, EITHER ORAL OR WRITTEN BETWEEN THE PARTIES. NO COURSE OF PRIOR DEALING BETWEEN THE PARTIES AND NO USAGE OF TRADE SHALL SUPPLEMENT ANY TERM CONTAINED HEREIN. ACCEPTANCE OR ACQUIESCENCE IN A COURSE OF PERFORMANCE RENDERED SHALL NOT BE RELEVANT TO DETERMINE THE MEANING OF ANY AGREEMENT WITH SELLER EVEN THOUGH THE ACCEPTING OR ACQUIESCING PARTY HAS KNOWLEDGE OF THE NATURE OF THE PERFORMANCE AND OPPORTUNITY FOR OBJECTION.

2. Price, Payment and Taxes. Payment terms are 30 days.

Payment is by credit card unless Seller has agreed to other payment terms with Buyer. Overdue amounts shall accrue interest at a rate of 18% per annum or the maximum legal rate, whichever is less. Buyer represents that all information contained in the most recent credit application delivered by Buyer to Seller is true, correct and complete in all 6565746v.2 material respects. Credit and delivery are subject to Seller’s approval, and Seller reserves the right to alter the terms and fix a limit of credit. Each order or contract shall be treated as a distinct contract, provided that if Buyer shall fail to fulfill the terms of payment, Seller may, without prejudice to any other lawful remedy, pursue one or more of the following remedies: (1) defer or delay further shipments; (2) cancel any order or contract; (3) require Buyer to make cash payments or provide security satisfactory to Seller before making shipment; (4) accelerate the due date of payment by the Buyer under any other contract or order; (5) stop goods in transit to Buyer; (6) require payment at the time of delivery at Seller’s factory or at such other time as Seller may specify; or (7) withdraw all unaccepted quotations. Buyer shall be liable to Seller for all costs and fees, including attorney’s fees, incurred by Seller in connection with its efforts to collect any overdue account, whether or not suit is brought.

All quotations are valid only for the term of the acceptance period stated therein. Unless otherwise stated, such acceptance period shall commence with the date of Seller’s quotation. In the absence of a written acceptance period, all quotations are for immediate acceptance. Seller’s quoted prices are exclusive of Federal, state or municipal sales, GST, use or similar taxes. Such taxes shall be added to the invoice as a separate item, or separately invoiced, and paid by Buyer.

3. Limitation and Exclusion of Warranties.

a. Limited Warranty, Disclaimer and Limited Remedy.

THE INSTRUCTIONS FOR USE SUPPLIED WITH EACH GOOD SOLD BY SELLER CONTAIN A LIMITED WARRANTY FOR SUCH GOOD, EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND LIMIT BUYER’S REMEDIES FOR BREACH OF THE APPLICABLE LIMITED WARRANTY. SELLER DISCLAIMS ALL OTHER WARRANTIES, IT BEING UNDERSTOOD THAT THE INSTRUCTIONS FOR USE SET FORTH THE SOLE AND EXCLUSIVE WARRANTY FOR ANY GOODS SOLD BY SELLER TO BUYER EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. No agreement varying or extending these warranties, remedies or limitations shall be binding upon Seller unless it is set forth in a written instrument signed by a duly authorized executive officer of Seller.

b. Title.

Seller warrants to Buyer that it will convey good title to the goods sold to Buyer hereunder. Seller’s liability and Buyer’s remedy under this warranty shall be strictly limited to the removal of any title defect or, at the sole option of the Seller, to the replacement of the goods or parts thereof that suffer from a defect in title.

4. Excusable Delays.

Seller shall not be liable for delay or non-delivery when the delay or non-delivery is caused, directly or indirectly, in whole or in part, by any one of more of the following: acts of God, wars, terrorism, sabotage, explosions, riots, earthquakes, storms, epidemics, hostilities, strikes, slowdowns, lockouts, fire, floods, lightning, tornadoes or wind, shortages of labor, fuel, power, materials or supplies, inability to secure materials, insufficient transportation facilities, delays in transportation of product or material or supplies, accidents to or malfunctions of plant or machinery, Government regulations, interference or embargoes and any other act or cause 6565746v.2 outside of the control of Seller (whether or not similar in nature to any of those specified herein).

5. Title, Delivery, Risk of Loss and Shipping.

Delivery or shipment dates specified are Seller’s best estimates and shall not bind Seller to ship or make deliveries on the date specified. Unless specifically stated in writing in Seller’s quotation, Seller shall have no liability whatsoever for failure to meet delivery or shipment schedules. Unless otherwise stated in the quotation by Seller, all shipments shall be F.O.B. SHIPPING POINT. Title to and risk of loss of all goods sold hereunder shall pass to Buyer upon their delivery, f.o.b. Seller’s factory to any agent of Buyer, including a common carrier or warehouse, as hereinafter provided. Wherever transportation rates and carrier’s liability for damage depend upon the value of the shipment as declared by shipper, Seller shall declare the value entitling shipment at the lowest permissible transportation rates unless otherwise instructed in writing by Buyer. Buyer shall furnish written destination instructions for all goods at the time of order. Seller shall, for the account and at the expense and risk of Buyer, arrange for shipment of the goods by a carrier of its own selection to Buyer’s destination. Seller shall not be liable for loss or damage attributed to negligence either in selection of the carrier or in agreeing with it to contract terms on Buyer’s behalf.

6. Cancellations and Returns.

Orders may not be canceled and goods may not be returned for any reason without prior written authorization and, if applicable, shipping instructions from Seller. All goods returned for “NONWARRANTY REASONS” with Seller’s authorization are subject to a restocking charge equal to 30% of the applicable invoice price plus applicable freight charges both ways.

7. Inspection.

Buyer shall inspect the goods upon receipt, and shall, within 30 days after receipt, give written notice to Seller of any grounds for rejection and afford Seller a reasonable opportunity to inspect the goods and make any appropriate adjustment or replacement. The remedies afforded Buyer under Section 3 shall be the exclusive remedies for defective goods whether or not discovered upon inspection by Buyer. Buyer shall not delay payment for the goods pending their inspection.

8. Limitation of Liability.

In no event shall Seller be liable to Buyer for punitive or special damages, including, without limitation, any damages for loss of goodwill or reputation. The limitations of liability set forth herein shall be in addition to, and do not in any way restrict, the limitations of liability set forth in the Limited Warranty.

9. No Assignment.

Buyer may not assign the order, in whole or in part, to any affiliate or third party without the prior written consent of Seller. Any purported assignment in violation of this provision shall be null and void.

AcceleDent Optima Terms and Conditions

If you are under the age of 18 but at least 13, you may only use the OATI Service under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. If you are under the age of 13, you may only use the OATI Service if you are registering as a patient under the supervision of a dental professional, and your parent or legal guardian consents to your use of the Application as part of the patient registration process of our Application. Our Children’s Privacy Policy (attached hereto as Exhibit A and fully incorporated herewith), which is in accordance with the U.S. Children’s Online Privacy Protection Act, addresses how we use and what we will and will not do with information collected from such users.

These Terms of Use (the “Terms” or “Agreement”) constitute a binding agreement between you (“End User” or “you”) and OrthoAccel Technologies, Inc. (“Company” or “OATI”). These Terms govern your use of the AcceleDent App, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

The Company has designed the Application to make AcceleDent use data available and easily understandable, in order to empower and inspire users to consistently use their AcceleDent device in order to achieve optimal accelerated orthodontic treatment results. This Agreement governs your use of our web portal and website (www.acceledent.com) (collectively, the “Site”), the software embedded in Company devices, the OATI Connect software, the Application and other related OATI services (collectively, the “OATI Service”).

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT: (i) DOWNLOAD OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE, (ii) CREATE AN ACCOUNT, (iii) VISIT WWW.ACCELEDENT.COM OR (iv) USE THE OATI SERVICE.

OATI believes in protecting your privacy.  Please review our current privacy policy (“Privacy Policy”), which can be found at (www.acceledent.com) and is incorporated herein by reference, to understand and agree to our policies regarding your privacy.

 

  1. Terms may be modified

OATI reserves the right to update or modify the Terms at any time without prior notice. Your continued use of any portion of the OATI Service, including any portion of the Site and/or Application, whether or not as a registered user, following any such update or modification constitutes your agreement to follow and be bound by the Terms as updated or modified. For this reason, you are advised to review these Terms whenever you use the OATI Service.  These Terms may be found at any time on the Site and Application, and OATI will provide you with a copy of the Terms upon request.

  1. Use of the OATI Service

You may use the OATI Service if you are in good standing with the Company or not otherwise prevented from using the OATI Service under applicable law. You may connect to the OATI Service (i) by use of a device that is manufactured, distributed, or sold by or on behalf of OATI; (ii) through the OATI mobile applications; (iii) through the OATI Connect software; (iv) through approved third-party applications; or (v) through www.acceledent.com (together, the “Authorized Connections”). You may not connect to the OATI Service in any other manner, including by use of any device (a) that is not manufactured, distributed, or sold by or on behalf of OATI (such as a copycat, replica version of an OATI product), (b) otherwise intends to resemble or purports to be a OATI Product; or (c) any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the OATI Service.  If you have questions about whether a product or application qualifies as an Authorized Connection, please contact customerservice@orthoaccel.com.

  1. Creating an Account

In order to utilize the OATI Service, you will need to create an account by providing us with a valid email address and system-accepted password. You are responsible for all activity that occurs in connection with your account.  You agree that OATI is not liable in any respect for any loss or damages caused by your direct or indirect failure to maintain the confidentiality of your account credentials.

OATI may periodically need to contact you about your use of the OATI Service. These communications are part of the OATI Service and you may not opt-out from such communications (“Essential Communications”).  You may manage communications (including opting out from receiving other non-Essential Communications), and update personal account and profile information through the account support settings.

  1. Necessary Equipment; Internet and Viruses

Full use of the OATI Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the OATI Service and it is your responsibility to ensure the equipment’s functionality.  While using the internet and the OATI Service, you may encounter various costs, expenses, or technical difficulties which could impact you and your computer equipment. You may also inadvertently receive computer viruses or other malicious files while using the OATI Service. You agree that OATI is not responsible for such difficulties, viruses or other malicious files encountered during your use of the OATI Service or the internet, or any loss or damages caused thereby. For these reasons, OATI recommends that you take every possible precaution to avoid of such difficulties, viruses and other malicious files, including, but not limited to through the use of anti-virus software and equipment.

  1. OATI Content; OATI’s Intellectual Property Rights

OATI Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the OATI Service to you.  All intellectual property rights in the OATI Content, the OATI Service and any derivative rights, shall remain OATI’s sole property.  OATI Content, the OATI Service and their underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries, except to the extent they constitute Your Content (as defined below). You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the OATI Service or OATI Content.

  1. License Grant

Provided that you comply with these Terms, OATI grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (i) access and view the OATI Content, (ii) access and use the software and mobile applications provided by the OATI Service, and (iii) use the software that is embedded into OATI products as authorized in these Terms. This license is provided solely for your personal and non-commercial use of the OATI Service as permitted under these Terms.  If this Agreement terminates and/or if you are in default of these Terms, this license shall automatically terminate.

You may not copy, download, reproduce, modify, publish, distribute, transmit, transfer, create derivative works from, reverse engineer, improve, import, export, offer for sale, or sell the OATI Service, or any OATI Content, without first obtaining written permission from OATI. You hereby agree to assign and do hereby assign to OATI all rights and interests in any intellectual property, submissions, data, improvements, derivative works, modifications, inventions, or otherwise, related to or derived from the OATI Service, or any OATI Content, that are developed by or attributable to you.

  1. Prohibited Actions on the OATI Service

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the OATI Service:  (i) use, display, mirror or frame the OATI Service or any individual element within the OATI Service, OATI’s name, any OATI trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without OATI’s express written consent; (ii) access or tamper with non-public areas of the OATI Service, OATI’s computer systems, or the technical delivery systems of OATI’s providers; (iii) test the vulnerability of any OATI system or breach any security or authentication measures; (iv) circumvent any technological measure implemented by OATI or any of OATI’s providers or any other third party (including another user) to protect the OATI Service or OATI Content; (v) access the OATI Service or OATI Content through the use of any mechanism other than through the use of an Authorized Connection, OATI Service or OATI applicable programming interface (vi) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that OATI provides to you or any other part of the OATI Service or (vii) use any form of hardware or software that blocks or enabled blocking of third party advertising accessible through links, including advertising banners, on the Site or Application.

  1. Communications and Submissions on the OATI Service

You may receive and post messages (“Your Content”) on the OATI Service.  You retain all rights to and are responsible for Your Content.  With respect to posting messages, you represent and warrant that Your Content and the use and provision of Your Content on the OATI Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy in any contributory, direct or vicarious fashion; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) post or transmit anything that is or may be construed as defamatory, obscene, pornographic, vulgar or offensive or that could give rise to any civil or criminal liability under the law; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.  OATI is not responsible for Your Content at any time.  OATI is not able to view or monitor any of Your Content and has no obligation to and will not monitor any such communications. You agree that any other submissions, data, comments, content, ideas, modifications, intellectual property, including copyrights, derivatives, communications, or any other information, but excluding all of Your Content (collectively, “Transmissions”) submitted to OATI, whether through the OATI Service, Site, Application, social networking or advertising website, or otherwise, by you or anyone acting on your behalf, regarding the OATI Service, Site, Application, OATI Content, shall be and remain the exclusive property of OATI. Any such Transmissions will be treated as non-confidential and non-proprietary and constitute an assignment to OATI of all world-wide rights, titles and interests in all copyrights and other intellectual property rights in the Transmissions. OATI will be entitled to use, reproduce, disclose, publish and distribute any Transmissions you transmit for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products or services without compensating you in any way. For this reason, you should not send us any Transmissions that you do not wish to assign to us, including any confidential information or any original creative materials such as artwork, product ideas, or computer code.

  1. DMCA/Copyright Policy

OATI respects the intellectual property of others and will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512(c) and expects you to comply as well.   If you fail to comply or otherwise infringe the rights of copyright holders, OATI may, at its sole discretion, terminate your access to the OATI Service.  Please see OATI’s DMCA/Copyright Policy [www.acceledent.com].

  1. Our Enforcement Rights

We are not obligated to, and in certain cases, are unable to, monitor access or use of the OATI Service, OATI Content, or Your Content or to review or edit any OATI Content or Your Content, but we have the right to do so for the purpose of operating the OATI Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal processes, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the OATI Service, any OATI Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the OATI Content, Your Content, or your use of the OATI Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the OATI Service.

  1. Warranties and Disclaimers

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND OATI, WHICH WAS INTENDED TO SUPERSEDE THIS AGREEMENT IN THE EVENT OF A CONFLICT, THE OATI SERVICE AND ALL MATERIALS AND CONTENT ACCESSIBLE THROUGH THE OATI SERVICE, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, OATI  MAKES NO WARRANTY THAT (i) THE OATI SERVICE AND OATI CONTENT WILL MEET YOUR REQUIREMENTS; (ii) THE OATI SERVICE, AND OATI CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE OATI SERVICE OR OATI CONTENT WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS OR CONTENTS PURCHASED OR ACCESSIBLE BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE OBTAINED FROM OR USED THROUGH THE SITE OR APPLICATION, OR ANY DEFECTS IN THE SITE OR APPLICATION, ITS CONTENT, OR THE OATI SERVICE AS A WHOLE, WILL BE CORRECTED.

THE OATI SERVICE AND OATI CONTENT COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. OATI MAY MAKE CHANGES TO THE CONTENTS OF THE OATI SERVICE, AT ANY TIME WITHOUT NOTICE. THE OATI CONTENT OF THE OATI SERVICE MAY BE OUT OF DATE, AND OATI MAKES NO COMMITMENT TO UPDATE SUCH CONTENT OR SERVICES.

YOU UNDERSTAND AND ACKNOWLEDGE THAT (i) OATI DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY CONTENT, PRODUCTS, OR SERVICES SUBMITTED OR OFFERED BY THIRD PARTY ADVERTISING ACCESSIBLE THROUGH LINKS, INCLUDING ADVERTISING BANNERS, ON THE SITE OR APPLICATION; (ii) OATI MAKES NO REPRESENTATION OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTY ADVERTISERS, THEIR CONTENT, PRODUCTS, OR SERVICES; (iii) ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTY ADVERTISERS ARE AT YOUR OWN RISK; AND (iv) OATI SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY CONTENT, PRODUCTS, OR SERVICES OFFERED BY SUCH THIRD PARTIES.

THE USE OF OR THE DOWNLOADING OR OTHER USE OF ANY OATI CONTENT OR COMMUNICATIONS THROUGH ANY PORTION OF THE OATI SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. OATI ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE SITE OR APPLICATION OR IN CONNECTION WITH ANY SERVICES, CONTENT, COMMUNICATIONS, OR EMAIL AS WELL AS CONTENT OFFERED THROUGH THE OATI SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OATI OR THROUGH OR FROM THE OATI SERVICE OR OATI CONTENT SHALL CONSTITUTE LEGAL, COMMERCIAL, OR OTHER ADVICE OF RELIANCE OR CREATE ANY LIABILITY OF OATI OR ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. YOUR USE OF THE OATI SERVICE AND OATI CONTENT SHALL NOT CREATE, AND YOU AGREE NOT TO ASSERT, ANY FORM OF JOINT VENTURE, PARTNERSHIP, JOINT OR SEVERAL LIABILITY, AGENCY, OR ANY OTHER FORM OF RELATIONSHIP BETWEEN YOU AND OATI EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN.

DEPENDING ON YOUR USE OF THE OATI SERVICE, OATI MAY HAVE ADDITIONAL OR REPLACEMENT TERMS AND CONDITIONS AVAILABLE ON THE WEBSITE WWW.ACCELEDENT.COM, WHICH MAY BE UPDATED FROM TIME-TO-TIME, AND YOUR USE OF THE OATI SERVICE MAY BE GOVERNED BY SUCH ADDITIONAL TERMS AND CONDITIONS.  IT IS YOUR RESPONSIBILITY TO REVIEW ADDITIONAL OATI TERMS AND CONDITIONS AND ENSURE YOUR COMPLIANCE, AT ALL TIMES, WITH ALL SUCH APPLICABLE TERMS AND CONDITIONS. IN THE EVENT THAT THESE TERMS OF USE CONFLICT WITH ANY OTHER APPLICABLE OATI WRITTEN TERMS OR CONDITIONS, SUCH ADDITIONAL OR AMENDED TERM(S) SHALL CONTROL.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THESE TERMS OF USE SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.

  1. Updates to the OATI Service

Company may from time to time, in its sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by OATI products without prior notice to you.  Updates may also modify or delete in their entirety certain features and functionality. You agree that OATI has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  Further, OATI may modify, suspend or discontinue, temporarily or permanently, any feature or component of the OATI Service at any time without notice.  OATI is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the OATI Service.

  1. Termination

If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support. Upon any termination, discontinuation or cancellation of the OATI Service or your account, the following provisions of these Terms will survive:  OATI Content; OATI’s Intellectual Property Rights; Our Enforcement Rights; Termination; Warranties and Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.

  1. Indemnity

YOU AGREE TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS OATI AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “OATI GROUP”), FROM AND AGAINST ANY CLAIMS (INCLUDING BUT NOT LIMITED TO  CLAIMS  OF  STRICT  LIABILITY, NEGLIGENCE OF ANY PERSON OR ENTITY, INCLUDING CLAIMS OF NEGLIGENCE AGAINST THE OATI GROUP,  AND  FOR  LIABILITY  IMPOSED  BY  LAW, WHETHER STATUTORY OR OTHERWISE), DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES (COLLECTIVELY, “CLAIMS”) RELATED TO, CONNECTED WITH OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, (I) YOUR ACCESS TO OR USE OF THE OATI SERVICE, (II)YOUR ACCESS TO OR USE OF THE OATI CONTENT, (III) YOUR ACCESS TO OR USE OF THE OATI CONTENT, (IV)YOUR BREACH OF ANY WARRANTIES MADE BY YOU HEREUNDER, OR (V) YOUR VIOLATION OF ANY OTHER PROVISION OF THESE TERMS, REGARDLESS OF FAULT INCLUDING THE NEGLIGENCE OF OATI.  You agree that OATI may select counsel of its choice to defend it in connection with any Claims for which you are obligated to provide indemnity and/or defense.  You further agree that you will cooperate with OATI in the defense of any Claims.

  1. Limitation Of Liability

NEITHER OATI, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE OATI SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE OATI SERVICE, REGARDLESS OF WHETHER ANY SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING THE NEGLIGENCE OF OATI OR ITS AFFILIATES), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OATI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL OATI’S TOTAL LIABILITY TO ANY PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE OATI SERVICE EXCEED THE LESSER OF (i) THE AMOUNTS YOU HAVE PAID TO OATI FOR USE OF THE OATI SERVICE OR (ii) ONE HUNDRED DOLLARS ($100).

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OATI AND YOU.

  1. Dispute Resolution, Choice of Law and Agreement on Venue and Jurisdiction

The Terms shall be deemed to have been executed and delivered within the State of Texas. The Terms and the resolution of any dispute, claim, cause of action, or other controversy between you and OATI concerning the OATI Service, the OATI Content, any other OATI products or services, or these Terms, whether in contract, warranty, tort, statute, regulation, ordinance or any other legal or equitable basis (“Dispute”) shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of laws principles.

You agree that the mandatory and exclusive venue for the filing and determination of any Dispute shall be in the State or Federal Courts located in Houston, Harris County, Texas.  You and OATI consent and agree to submit to the jurisdiction of these courts and waive any defenses that You or OATI have or may have to the jurisdiction of such courts.

Prior to the institution of any litigation in the State or Federal Courts located in Houston, Harris County, Texas arising out of a Dispute, the Parties agree to attempt to resolve such Dispute through informal negotiation.  In particular, in the event of a Dispute, you or OATI must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by email to OATI at legal@oati.com. OATI will send any Notice of Dispute to you by U.S. Mail to your address if OATI has it, or otherwise to your email address. You and OATI will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or OATI may commence litigation in the State or Federal Courts located in Houston, Harris County, Texas.

  1. General Terms

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between OATI and you regarding the OATI Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between OATI and you regarding the OATI Service and OATI Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without OATI’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. OATI may freely assign or transfer these Terms without restriction.  Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by OATI under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the OATI Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

OATI’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of OATI. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Last modified:  August 7, 2016

 

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