Terms of Service
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Last Updated: January 17, 2020
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
These Terms of Service (the “Agreement”) constitute a binding contract between you and Octane AI, Inc. Throughout this Agreement, we will refer to you as “you” we will refer to Octane AI, Inc. and its affiliates and subsidiaries as “we", "us", or "Octane AI, and we will refer to www.octaneai.com as the “Website”. This Agreement governs your use of the Website and any web or mobile software applications or related services offered by Octane AI from time to time, whether directly through the Website or through third-party websites or applications, including without limitation the Bot Platform Service and the Bot Management Service (the Website and all such web or mobile applications or other Internet services are, collectively, referred to as the “Service”). BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE ANY PART OF THE SERVICE.
- Summary of Material Terms
- Scope of License to Users
- Registration and Eligibility
- The SMS Service
- Fees; Payments
- External Services and Third-Party Terms.
- Your Use of the Service and Octane AI Content
- Data Security
- Beta Products and Services
- Consequences of Violating These Terms of Service
- Changes to the Service or These Terms of Service
- Third-Party Interactions and Disputes
- No Warranty
- Limitation of Liability
- Third-Party Elements
- Notice of Claims of Copyright Infringement
- Arbitration and Class Action Waiver
- Governing Law and Jurisdiction
1. Summary of Material Terms.
As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- a. the Service is licensed, not sold to you, and you may use the Service only as set forth in this Agreement;
- b. the use of the Service may be subject to separate third-party terms of service and fees, which are your sole responsibility;
- d. the Service is provided “as is” without warranties of any kind and Octane AI’s liability to you is limited; and
- e. disputes arising out of or relating to this Agreement (including, without limitation, its formation, performance or breach) will be resolved by binding arbitration, and the parties agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action.
- a. The Service. Octane AI offers, as distinct parts of the Service, a platform that enables certain Users (as defined below) to create chatbots, send SMS messages, and perform related functions (the “Bot Platform Service”) as well as optional services to manage certain content and functions of bots through the platform (the “Bot Management Service”). The features and limitations of the Service available to you, the duration of your rights to use the Service, the Fees associated with your use of the Service, and certain other terms are set forth in the subscription plan(s) you choose through the Website or through the Octane AI onboarding workflow in one or more third-party websites or applications (the “Subscription Plan”). The terms of each Subscription Plan are incorporated into this Agreement.
- c. Users. To use the Service, you must be, and represent and warrant that you are 18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, at least 16 years of age, and able to agree to this Agreement. No part of the Service is directed to persons under the age of 16. IF YOU ARE UNDER 16 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The Service AT ANY TIME OR IN ANY MANNER. The rights granted in this Agreement may be exercised solely by a single user unless otherwise provided in your Subscription Plan, in which case the rights granted herein may be exercised by the number of authorized users permitted under the Subscription Plan and identified under the control of the enterprise admin. account. Each such authorized user shall comply with and be bound by this Agreement. If you use the Service on behalf of a company, entity, or organization (each a “Subscribing Entity”), you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to this Agreement, and (ii) agree to be bound by this Agreement on behalf of such Subscribing Entity. If Octane AI has previously prohibited you from accessing or using the Service, you are not permitted to access or use the Service.
3. Scope of License to Users.
- a. License Grant to You. The Service is licensed, not sold, to you and you are permitted to use the functions and features of the Service made available to you by Octane AI only according to the terms of your Subscription Plan and this Agreement. Your rights to access and use the Service are limited, revocable, non-exclusive, non-transferable, and non-sublicensable, and are solely for your internal business operations or those of your Subscribing Entity. Except as expressly provided in the Subscription Plan, Octane AI has no obligation under this Agreement or otherwise to provide any professional services to you, including any training or development of any content strategy or custom content.
- b. License Limitations.
I. You may access the Service solely as intended through the provided functionality of the Service and as permitted under this Agreement. You may not do, or attempt to do, any of the following:
- A. use the Service to provide services to any third party in support of such third party’s business;
- B. directly rent, lease, lend, sell, redistribute or sublicense the Service;
- C. copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law);
- D. display, mirror, publish, distribute, transmit, or transfer any portion of the Service;
- E. remove or obscure any trademark symbols, copyright notices, or other intellectual property rights notices present in the Service or any content therein;
- F. use any trademarks, service marks, design marks, logos, photographs or other content belonging to Octane AI or obtained from the Service;
- G. use any part of the Service for third-party training, commercial time-sharing or service bureau use;
- H. publish or disclose any benchmark tests of any part of the Service;
- I. use any part of the Service for any illegal or unauthorized purpose, including any purpose in violation of any applicable law;
- J. interrupt operation of any part of the Service or disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service;
- K. interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Service;
- L. take any action that imposes, or may impose, as determined in Octane AI’s sole discretion, an unreasonable or disproportionately large load on its infrastructure;
- M. upload any invalid data, viruses, worms, or other software agents or malware to or through the Service;
- N. bypass the measures used to prevent or restrict access to the Service, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Service; or
- O. provide or transmit to Octane AI or the Service any data that contains any personally identifiable information or any other data that is subject to regulation under any data-protection legislation applicable to the processing or use of such data, including data that is governed by the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), or the Children’s Online Privacy and Protection Act (COPPA).
- II. If you breach any of these restrictions, or otherwise exceed the scope of the licenses and rights granted in this Agreement, then you may be subject to prosecution and damages, liability for infringement of intellectual property rights, termination of your Subscription Plan, and denial of access to the Service. Octane AI reserves the right to pursue any other legal and equitable remedies available to it.
- I. You may access the Service solely as intended through the provided functionality of the Service and as permitted under this Agreement. You may not do, or attempt to do, any of the following:
- c. Applicability to Updates. The terms of this Agreement will govern any updates provided to you by Octane AI that replace and/or supplement the Service, unless such upgrade is accompanied by a separate license or other agreement, in which case the terms of that license or revised agreement will govern to the extent of any inconsistencies between this Agreement and such license or other agreement.
4. Registration and Eligibility.
- a. Subscription Plans. Users of the Service (each a “User” and collectively, the “Users”) may apply for a subscription to distinct features of the Service by choosing one or more Subscription Plans through the Website or one or more third-party sources, websites or applications ("External Services”), which may ask you to provide certain information, including your name, email address and password. The information you provide must be accurate and complete. We reserve the right to approve or reject your application for a Subscription Plan in our sole discretion.
- b. Account Security.
- I. Your account with the Service is personal to you or the Subscribing Entity you represent, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials to the Service, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your or your Subscribing Entity’s username and password, and any device that you use to access the Service. You agree to notify us immediately of any breach in the confidentiality of your or your Subscribing Entity’s access credentials to the Service. You or the Subscribing Entity you represent shall be solely responsible for maintaining the confidentiality of your password.
- II. Octane AI cannot guarantee that unauthorized third parties will never be able to defeat our security measures. If you have any reason to believe that you or your Subscribing Entity’s access credentials or other account information have been compromised or that your account has been accessed by a third party, you agree to immediately notify us via e-mail at firstname.lastname@example.org. You or the Subscribing Entity you represent will be solely responsible for the losses incurred by Octane AI and others due to any unauthorized use of your account with the Service.
5. The SMS Service.
- a. SMS Messaging to Users. The Service may include the ability for Octane AI to communicate with you via an SMS messaging service. You can opt-in to our services via web forms on the Service or in a Subscription Plan. You may choose to opt-in to our SMS messaging service at your own discretion, and you may opt-out at any time. We will communicate with you via SMS messages for the purposes of service alerts, notifications and updates about new features. We may also send promotional messages. Participating carriers include: AT&T, Boost Mobile, T-Mobile, Metro PCS, Verizon Wireless, Sprint, U.S. Cellular, Nextel & Virgin Mobile. Carriers are not liable for delayed or undelivered messages. T-Mobile is not liable for delayed or undelivered messages. As always, message and data rates may apply. You will receive an average of 5 messages per week or less, but we may occasionally exceed this number in certain circumstances. If you have any questions about your text plan or data plan, please contact your wireless provider. You can cancel the SMS service at any time. To cancel, text "STOP" to 58548. We will respond with a single SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. You may, at any time, text "HELP" to 58548 for a brief help message. We will respond with instructions on how to use our service as well as how to unsubscribe. You may also contact our support team by emailing us at email@example.com or you can call +1 (212) 548-6579 (email will likely get you a faster response).
- b. SMS Messaging to Third Parties. As a User, you or the Subscribing Entity may have the ability to use the Service to send SMS messages to third parties (the “SMS Service”).
- I. Opt-In Requirement. You or the Subscribing Entity you represent agree that all parties that you send SMS messages to or otherwise contact through the SMS Service have clearly and unambiguously consented or elected to receive SMS messages from you or the Subscribing Entity you represent by way of a process that requires deliberate action on the part of such electing party, commonly and herein referred to as “opting in”.
- II. Opt-In Tracking Functionality. The Service may include functionality that allows you to reflect and adjust the parties that have opted in to receive SMS messages from you through the SMS Service. Whether or not you use the product described in the previous sentence, you or the Subscribing Entity you represent are solely responsible for managing such functionality and ensuring that all parties you send SMS messages to through the SMS service have opted in to receive such SMS messages, and we expressly disclaim any and all responsibility for ensuring that such parties have opted in.
- III. Opt-Out. You or the Subscribing Entity you represent agree to provide clear and unambiguous instructions via SMS message to each party you contact through the SMS Service for electing to receive no further SMS messages through the SMS Service from you or the Subscribing Entity you represent, commonly and herein referred to as “opting out.” You or the Subscribing Entity you represent agree that you will honor each opt out request by not sending any SMS messages through the SMS Service to a party following such party’s opt-out request.
6. Fees; Payments.
- a. Fees. Your access to and use of the Service is subject to the payment of all fees and other charges set forth in this Agreement, including the applicable Subscription Plan (“Fees”), and you agree to pay all Fees in accordance with this Agreement. Initiation of the Subscription Plan may require you provide valid payment account information or make other payment arrangements with Octane AI or a third-party payment processor on behalf of Octane AI. All information that you provide in connection with the Subscription Plan or other transaction with Octane AI and/or the Service must be accurate, complete, and current.
- b. Payment Terms. You must pay each invoice, if any, issued by Octane AI within 30 days of issuance or, if applicable, comply with the manner and timing of payment specified in the applicable Subscription Plan. Any amounts not paid within the applicable payment period shall bear interest at the rate of one and one-half percent per month or the maximum rate allowed by law, whichever is less. The Service currently uses third parties to process payment of Fees. Our third-party payment processors accept payments through various credit cards, as detailed on the applicable payment screen. All monetary transactions on the Service take place in U.S. Dollars.
- c. Taxes. Except for taxes on Octane AI’s income, you are responsible for determining and paying all appropriate government taxes, fees, and service charges resulting from your use of the Service or any transaction occurring through the Service, including any sales, excise, service, use or other taxes now in effect or imposed later. We are not responsible for collecting, reporting, paying, or remitting to you any such taxes, fees, or service charges, except as may otherwise be required by law.
- d. Audit Rights. We reserve the right to audit your use of the Service. Additional terms regarding such audits may be as set forth in a separate agreement.
- e. Additional Features. Octane AI may add new features for additional fees and charges at any time. We may amend fees and charges for existing features at any time, and such amended fees shall go into effect immediately following the expiration of the then-current subscription term. Except as otherwise set forth in this Agreement, in no event will you be entitled to any refund of Fees.
You agree that your use of the Service will not include sending unsolicited marketing messages or broadcasts (i.e. spam). Octane AI may utilize any means possible to block spammers and abusers from using the Service. If you believe spam originated from the Service or you receive spam via the Service, please email us immediately at firstname.lastname@example.org
8. External Services and Third-Party Terms.
- a. The Service may contain certain functions and features, and may link, display or provide you with access to certain data, originating from External Services under agreements between such External Services and Octane AI. The specific External Services used to supply data are chosen by Octane AI in its sole discretion. When using the Service, you may be required to enter user identification, passwords and other credentials in order to access data originating with External Services. You are solely responsible for maintaining all valid credentials necessary to access External Services and Octane AI shall not be responsible for any failure by you to access or connect to any External Service due to invalid credentials. Octane AI is not responsible for and does not endorse any features, content, advertising, products, or other material on other websites or applications and you assume all risk arising from your use of such websites or applications.
- b. Octane AI has no control over and is not responsible for External Services or for the operational activities, privacy practices, data-collection practices, security, accuracy or content of any External Services. Access to, and use of, External Services may be subject to additional or different third-party terms and conditions and policies, including privacy policies (collectively, “Third-Party Terms”) and may not be available in all languages or in all countries. You agree to comply with all Third-Party Terms applicable to External Services.
- c. Your access to External Services and use of any content or data supplied by External Services during your use of the Service is at your own risk. You understand that by using the Service you may encounter data, information, applications, materials and other content from third parties, including other users (collectively, “Third-Party Materials”). You use the Service, and rely on any Third-Party Materials at your sole risk. Octane AI shall have no liability to you for any Third-Party Materials that may be found to be inaccurate, incomplete, untimely, invalid, illegal, indecent, or otherwise objectionable.
- d. You may incur third-party fees through use of the Service and you are solely responsible for all such fees incurred by you through your use of the Service.
9. Your Use of the Service and Octane AI Content.
Your right to use the Service is expressly conditioned on the following:
- a. You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any Octane AI Content (as defined below) available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by this Agreement, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Octane AI.
- b. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Octane AI Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Octane AI makes available the means for embedding any part of the Service or Octane AI Content.
- c. You agree not to access, tamper with, or use non-public areas of the Service, Octane AI’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Octane AI’s providers.
- d. You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Octane AI employees and other Users.
- e. You agree not to provide any false personal information to Octane AI or any other user, or create a false identify or impersonate another person or entity in any way.
- f. You agree not to create or attempt to create a new account with Octane AI, without Octane AI’s express written consent, if Octane AI has previously disabled an account of yours.
- g. You agree not to solicit, or attempt to solicit, personal information from other Users.
- h. You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users.
- i. You agree not to use the Service, without Octane AI’s express written consent, to communicate or facilitate any commercial advertisement or solicitation, except as expressly permitted in this Agreement.
- j. You agree not to gain unauthorized access to the Service, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
- k. You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
- l. You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
- m. You agree not to violate (1) any applicable international, federal, state or local laws or regulations applicable to you, your products or services (or those of the Subscribing Entity), or any data you or the Subscribing Entity collect or process; (2) any judicial, governmental, or administrative order, judgment, decree or ruling or enforceable requirements of any industry self-regulatory body; or (3) any enforceable regulatory guidance and written or authoritative interpretation of any of the foregoing by a regulatory body.
- n. You agree not to assist or permit any persons in engaging in any of the activities described above.
A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights and any other legal and equitable remedies available to us.
- a. Definitions. As used in this Agreement,
- I. “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other proprietary or intellectual property rights.
- III. “Octane AI Content” means all output, content, data or information made available through or contained within the Service, including without limitation, text, documents, charts, logos, buttons, icons, “look and feel” and screenshots, audio and video recordings, graphics, photographs, still and moving images, sound, illustrations, information, and software, including the organization and arrangement of all such content within the Service, and all derivative works of any such content. Octane AI Content excludes (i) User Data and (ii) any content provided by an External Service.
- b. Rights to Data. Subject to the licenses you grant to Octane AI below, as between you and Octane AI, you exclusively own all right, title, and interest in and to all User Data, including all Intellectual Property Rights therein. Octane AI is not responsible for the content or accuracy of any User Data and Octane AI may at any time and without prior notice remove, edit or block any User Data that Octane AI determines, in its sole discretion, to be in violation of this Agreement.
- c. Use of Data. You hereby grant to Octane AI a non-exclusive, irrevocable, fully paid and royalty-free, transferable, sublicensable, worldwide license to collect, use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute and create derivative works of the User Data, and any part thereof, (a) to the extent necessary or useful for Octane AI to provide the Services to you and to transfer raw and modified User Data to and from External Services, (b) in order to create, use, store, publish and distribute aggregate data, metadata, analyses and reports that do not identify you, (c) to comply with applicable legal requirements, including legal process and law enforcement requests, (d) to protect Octane AI’s rights, property and operations, including to enforce Octane AI’s agreements, policies, and terms and conditions, and to protect the rights, property and operations of Octane AI’s affiliates, business partners, customers or others, (e) to protect the personal safety of any individual, and (f) disclose and transfer User Data to third parties and their agents in the event of a sale or transfer, or proposed sale or transfer, of all or a part of Octane AI’s business, assets or stock to such third parties. Octane AI will not publish User Data without your consent except as described in (a) through (f) above.
- d. Third Parties. The authorizations you grant to Octane AI under this Agreement, including under this Section 10 (Ownership), will extend to service providers and other contractors exercising such rights and licenses on Octane AI’s behalf, and Octane AI may share User Data with such third parties who provide services on Octane AI’s behalf, subject to the restrictions applicable to Octane AI in this Agreement.
- f. Reservation of Rights. Other than rights expressly granted to you in this Agreement, Octane AI retains all of its right, title and interest in and to the Service and all Octane AI Content, including all Intellectual Property Rights therein. Except as expressly provided in this Agreement, nothing herein shall be deemed to create a license in or under any such Intellectual Property Rights. Use of any Octane AI Content or other materials obtained through the Service for any purpose not expressly permitted in this Agreement is strictly prohibited.
- g. Feedback. We appreciate hearing from our Users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (collectively, “Feedback”), we will:
- I. own, exclusively, all rights to the Feedback;
- II. not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and
- III. be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
11. Data Security.
- a. Secure Content Octane AI will implement and maintain commercially reasonable administrative, physical, and technical safeguards reasonably designed to prevent any unauthorized use, access, processing, destruction, loss, alteration or disclosure of your confidential account information, and User Data (“Secure Content”). However, Octane AI makes no representations that its information security program is adequate to safeguard sensitive personal information of any kind, including personal information that is subject to regulation under applicable data privacy laws, including, but not limited to the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), or the Children’s Online Privacy and Protection Act (COPPA). You are solely responsible for compliance with Laws applicable to such sensitive personal information.
- b. Security Breach Octane AI will use commercially reasonable efforts to notify Users following discovery of a breach or compromise of the security, confidentiality, or integrity of Secure Content. Notwithstanding the foregoing, Users will be solely responsible for all costs associated with such a breach or compromise, including but not limited to the cost, timing and content of providing notice to any affected persons or other parties as may be required under applicable data breach notification laws. You agree to promptly notify Octane AI if you discover or become aware of any security vulnerability or breach in any Octane AI system, network, or software.
You may obtain confidential and/or proprietary information of Octane AI and/or its licensors through your use of the Service, including without limitation Octane AI Content, pricing and other terms and conditions herein or in the Subscription Plan, marketing and sales information relating to the Service and other information, technology, ideas or algorithms derived from the Service or the use thereof, excluding User Data (“Confidential Information”). You shall not (a) use any Confidential Information, except to the extent expressly permitted in this Agreement, or (b) disclose any Confidential Information to any third party, except in connection with your performance under this Agreement and only on a need-to-know basis to employees, agents and contractors of the Subscribing Entity who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those herein. You agree to take the necessary precautions to maintain the confidentiality of the Confidential Information by using at least the same degree of care with which you treat your own confidential information of a similar nature, but in no case less than reasonable care. The foregoing confidentiality restrictions will not apply to Confidential Information to the extent that you can demonstrate that: (i) such information is generally available for use and disclosure by the public without any charge or license and without a breach of an obligation of confidentiality to Octane AI or its licensors; (ii) such information was in your possession without an obligation of confidentiality prior to its disclosure by Octane AI (or through the Service); or (iii) you rightfully obtained such information from a third party without restriction as to use or disclosure or the breach of an obligation of confidentiality to Octane AI. If you are required by a court or government agency to disclose Confidential Information, you must provide advance notice to Octane AI.
13. Beta Products and Services.
You acknowledge and agree that certain Octane AI products and services may be made available through the Service to select customers on a beta or trial basis, that such products and services may contain bugs, defects, and errors, and that such products and services are not expected to function fully when first made available.
14. Consequences of Violating These Terms of Service.
We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, in our sole discretion. We reserve the right to refuse to provide the Service to you in the future. We may review and remove any User Data at any time for any reason, including activity which, in our sole judgment: violates this Agreement; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by, or arising out of, your breach of this Agreement and your use of the Service.
15. Changes to the Service or these Terms of Service.
We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability. Octane AI may modify these Terms of Service or any policy or other terms referenced herein at any time by posting a revised version of the Terms of Service or such other policy or terms on the Website. The revised terms shall be effective upon the earlier of (a) five calendar days after the revised terms are posted, and (b) your acceptance, including by any click-through confirmation, acceptance button, or similar mechanism for acceptance provided by Octane AI directly or through an External Service.
16. Third-Party Interactions and Disputes.
- a. Background Checks. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH THIRD PARTIES. YOU UNDERSTAND THAT WE CURRENTLY DO NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON USERS OF THE SERVICE. WE ALSO DO NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF OUR USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF OUR USERS. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE. THE COMPANY RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLIC RECORDS.
- b. User and Third-Party Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. This includes disputes between Users. You assume all risk associated with dealing with third parties. You agree to resolve any disputes directly with the other party. You release Octane AI of all claims, demands, and damages in disputes among Users. You further agree not to involve us in such disputes. Use caution and common sense when using the Service. Octane AI makes no representations or warranties as to the conduct of Users. IN NO EVENT WILL OCTANE AI AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF, OR RELATING TO, THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, LOSS OF BUSINESS, LOST PROFITS, TRADE SECRET MISAPPROPRIATION, INTELLECTUAL PROPERTY INFRINGEMENT, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS AND THIRD PARTIES. YOU ASSUME ALL RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER OR THIRD PARTY AND IN CONNECTION WITH USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH SHARING CONFIDENTIAL INFORMATION. ALL USERS OF THE SERVICE HEREBY EXPRESSLY AGREE NOT TO HOLD THE RELEASED PARTIES LIABLE FOR ANY INSTRUCTION, ADVICE OR SERVICES DELIVERED THAT ORIGINATED THROUGH THE SERVICE AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT ARISE OR RELATED IN ANY WAY TO THE SERVICE, THE INFORMATION PROVIDED THROUGH THE SERVICE AND THE SERVICES PROVIDED BY OR TO ANY USER OF THE SERVICE. ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD-PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
This Agreement is effective until terminated by you or Octane AI; provided that the term during which you have rights to use some or all parts of the Service may be set forth in the Subscription Plan. Your rights under this Agreement will terminate automatically without notice from Octane AI if you fail to comply with any term(s) of this Agreement (including by violating any license restriction provided herein). Upon any termination of this Agreement, you must immediately cease all use of the Service and all amounts due to Octane AI under this Agreement for access to the Service prior to the effective date of termination shall become immediately due and payable.
18. No Warranty.
YOU UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE, INCLUDING ALL OCTANE AI CONTENT AND THIRD-PARTY DATA, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULT, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) ANY DATA, INCLUDING DATA SUPPLIED BY THIRD-PARTY DATA SOURCES, THAT MAY BE ACCESSED OR OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY INFORMATION, DATA OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED, OR (v) THE SERVICE OR THE OCTANE AI CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY SPECIFIC GEOGRAPHIC LOCATION; AND (C) ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
YOU HEREBY REPRESENT THAT YOU HAVE FULLY OBSERVED, AND WILL FULLY OBSERVE, THE LAWS OF YOUR JURISDICTION IN CONNECTION WITH YOUR USE OF THE SERVICE AND THE RELEASED PARTIES WILL HAVE NO LIABILITY RESULTING FROM OR RELATED TO YOUR FAILURE TO OBSERVE SUCH LAWS.
19. Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OCTANE AI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR LOSS OF DATA OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OCTANE AI’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE OR OCTANE AI; (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; AND (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT PROVIDED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF OCTANE AI CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF THE FEES YOU HAVE PAID TO OCTANE AI UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE APPLICABLE CAUSE OF ACTION AND USD $100.
THE LIMITATIONS OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
20. Third-Party Elements.
YOU ACKNOWLEDGE THAT (A) THE SERVICE MAY CONTAIN SOFTWARE OR COMPONENTS THAT ARE EITHER OWNED BY A THIRD PARTY OR IN THE PUBLIC DOMAIN, AND (B) OCTANE AI HAS NO PROPRIETARY INTEREST IN SUCH SOFTWARE OR COMPONENTS, AND AS SUCH, CANNOT GRANT YOU A LICENSE TO USE SUCH SOFTWARE AND/OR COMPONENTS. OCTANE AI WILL PROVIDE, OR OTHERWISE MAKE AVAILABLE, TO YOU ANY NECESSARY SUBLICENSES FROM SUCH THIRD PARTY AND USERS SHALL HAVE THE RIGHTS LICENSED TO THEM BY THE OWNERS OF THE THIRD-PARTY SOFTWARE AND/OR COMPONENTS. A LISTING OF SUCH THIRD-PARTY SOFTWARE IS MADE AVAILABLE TO YOU IN THE SERVICE DOCUMENTATION OR OTHERWISE UPON WRITTEN REQUEST. BY INSTALLING OR USING SUCH THIRD-PARTY SOFTWARE OR COMPONENTS, YOU ACKNOWLEDGE AND AGREE TO FULLY COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THE APPLICABLE LICENSES FOR SUCH THIRD-PARTY SOFTWARE OR COMPONENTS. OCTANE AI AND ITS LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS AS TO SUCH THIRD-PARTY SOFTWARE OR COMPONENTS, INCLUDING QUIET ENJOYMENT AND INFRINGEMENT, AND FURTHER DISCLAIM ALL LIABILITY FOR ANY LOSSES OR DAMAGES THAT MAY RESULT FROM YOUR USE OR DISTRIBUTION THEREOF (INCLUDING INFRINGEMENT INDEMNIFICATION). OCTANE AI IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR ANY SUCH THIRD-PARTY SOFTWARE OR COMPONENTS UNLESS EXPRESSLY AGREED TO IN WRITING BY OCTANE AI UNDER A SEPARATE AGREEMENT. YOU FURTHER AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND OCTANE AI AND ITS LICENSORS FROM AND AGAINST ANY CLAIMS OR LAWSUITS, INCLUDING ATTORNEYS’ FEES, THAT ARISE OR RESULT FROM YOUR USE OR DISTRIBUTION OF SUCH THIRD-PARTY SOFTWARE.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “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, which if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
22. Notice of Claims of Copyright Infringement.
Octane AI respects the intellectual property rights of others and require users of the Service to do the same. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”) and other applicable law, Octane AI will respond expeditiously to claims of copyright infringement committed using the Service if such claims are reported to Octane AI’s Designated Copyright Agent identified in the notice below.
If you are a copyright owner, authorized to act on behalf of a copyright owner, or authorized to act under any exclusive right under copyright, please report any alleged copyright infringements taking place on or through the Service by completing the following DMCA Notice of Alleged Infringement and delivering the Notice to Octane AI’s Designated Copyright Agent. Upon receipt of a DMCA Notice of Alleged Infringement as described below, Octane AI will take whatever action, in its sole discretion, that Octane AI deems appropriate, which may include the removal of, or disabling of access to, the challenged material from the Service.
DMCA Notice of Alleged Infringement (“Notice”)
- 1. Identify the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, you may provide a representative list of the copyrighted works that you claim have been infringed.
- 2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that is to be removed or to which access is to be disabled, including at a minimum, if applicable, the URL or the link shown on the Service or the exact location where such material may be found.
- 3. Provide your name, company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
- 4. Include both of the following statements in the body of the Notice:
- - “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- - “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- 5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Octane AI’s Designated Copyright Agent:
Octane AI, Inc.
Attn: Copyright Agent
PO Box 7775 #94590
San Francisco, CA 94120-7775
ECM #94590 (must include)
Email: email@example.com (with the subject line “DMCA Notice of Alleged Infringement”)
In the event Octane AI, after receiving a proper DMCA Notice of Alleged Infringement, takes steps to remove or disable access to the challenged material, Octane AI will take reasonable steps to promptly notify the party who originally posted such challenged material to the Service (the “Posting Party”) that Octane AI has removed or disabled access to such challenged material. Provided the challenged material does not otherwise violate this Agreement, the Posting Party may then dispute such DMCA Notice of Alleged Infringement by completing the following DMCA Counter-Notice and delivering the Counter-Notice to Octane AI’s Designated Copyright Agent. Upon receipt of a proper DMCA Counter-Notice, Octane AI will promptly provide the party who submitted the relevant DMCA Notice of Alleged Infringement (the “Reporting Party”) with a copy of such DMCA Counter-Notice and inform the Reporting Party that Octane AI will replace the removed material or cease disabling access to such material in 10 business days, and will thereafter replace the removed material and cease disabling access to such material not less than 10, nor more than 14, business days following receipt of such DMCA Counter-Notice, unless Octane AI’s Copyright Agent first receives notice from the Reporting Party that such Reporting Party has filed an action seeking a court order to restrain the Posting Party from engaging in infringing activity relating to the challenged material on the Service.
DMCA Counter-Notice (“Counter-Notice”)
- 1. Identify the material or link that has been removed or to which access has been disabled, including at a minimum, if applicable, the URL or the link shown on the Service or the exact location where such material appeared before it was removed or access to it was disabled.
- 2. In connection with such material, include the following statement in the body of the Counter-Notice:
- - “I hereby state, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”
- 3. Provide your name, address and telephone number.
- 4. If your address is located in the United States, include the following statement in the body of the Counter-Notice:
- - “I hereby state that I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located, and that I will accept service of process from the person who provided notification in connection with the material described in this counter-notice under 17 U.S. Code § 512(c)(1)(C) or an agent of such person.”
- 5. If your address is located outside of the United States, include the following statement in the body of the Counter-Notice:
- - “I hereby state that I consent to the jurisdiction of the Federal District Court for any judicial district in which Octane AI, Inc. can be found, and that I will accept service of process from the person who provided notification in connection with the material described in this counter-notice under 17 U.S. Code § 512(c)(1)(C) or an agent of such person.”
- 6. Provide your full legal name and your electronic or physical signature.
Deliver this Counter-Notice, with all items completed, to Octane AI’s Designated Copyright Agent
Octane AI, Inc.
Attn: Copyright Agent
PO Box 7775 #94590
San Francisco, CA 94120-7775
Please note that pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that the material or activity was removed or disabled by mistake may be subject to liability. Please also be advised that Octane AI enforces a policy of terminating the accounts of, or banning, repeat infringers. A repeat infringer includes any user who has made two or more postings that Octane AI has removed or disabled access to pursuant to notices of infringement under these DMCA notice and takedown procedures.
Please further note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OCTANE AI’S COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS.
23. Arbitration and Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Octane AI agree that the Service and this Agreement affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section is intended to be interpreted broadly and governs any and all disputes between you and Octane AI, including but not limited to claims arising out of or relating to any aspect of the relationship between you and Octane AI, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to your use of the Service); and claims that may arise after the termination of this Agreement or agreement to arbitrate. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Octane AI as follows:
- a. Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. You can reach Octane AI’s support department at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Octane AI’s support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, Octane AI will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration 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. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America. You and Octane AI further agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- c. Class Action Waiver. The parties further agree that the 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. YOU AND OCTANE AI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE 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 provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- d. Exception: Litigation of Intellectual Property Rights and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its Intellectual Property Rights. Either party may also seek relief in a small claims court for any disputes or claims within the scope of that court's jurisdiction.
- e. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you used to register for your account) written notice of your decision to opt out to email@example.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first use of the Service or the effective date of the first Agreement containing an Arbitration and Class Action Waiver section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Octane AI also will not be bound by them.
- f. Changes to This Section. Octane AI will provide thirty (30) days' notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your account. Such changes will become effective thirty (30) days after they are posted on the Service or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Service.
- g. Survival. This Arbitration and Class Action Waiver section shall survive any termination of your account, the Service, or of this Agreement.
24. Governing Law and Jurisdiction.
By visiting or using the Service, you agree that the laws of the United States of America and the laws of the State of California, without regard to the principles of conflicts of laws, will govern your use of the Service, and this Agreement and all matters relating to your access to and/or use of the Service, including all disputes between you and us and/or the Released Parties. For disputes not subject to the Arbitration and Class Action Waiver section above, or if any court or arbitrator determines that the Arbitration and Class Action Waiver section above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, you and Octane AI irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in Los Angeles County, California, and the related appellate courts, in any related action or proceeding. You hereby waive any and all jurisdictional and venue defenses otherwise available. YOU AGREE THAT ANY COURT ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE, THIS AGREEMENT AND ALL MATTERS RELATING TO YOUR ACCESS TO AND/OR USE OF THE SERVICE MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE FOR SUCH ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
- a. Restricted Rights. If the Service is deemed to be licensed to the United States government or any agency thereof, the Service, including any related technical data or accompanying documentation, are “commercial items” as defined in 48 C.F.R. §2.101, and include “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The use, duplication, reproduction, release, modification, disclosure or transfer of the Service and any technical data or documentation relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable. The commercial items, commercial computer software and commercial computer software documentation are being licensed to U.S. Government end users (i) only as commercial items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. This is in lieu of, and supersedes, any other Federal Acquisition Regulation (“FAR”), the Defense FAR Supplement, or other agency supplemental clause or provision that address Government rights in computer software or technical data. Any use, reproduction, release, performance, display or disclosure of the Service and/or any related technical data or accompanying documentation by or for the U.S. Government will be governed solely by this Agreement, to the extent permitted by law.
- b. Export Compliance. The Service and technical information of Octane AI provided under this Agreement may be subject to U.S. export and import control laws and the trade laws of other countries. You agree to comply with all export and import control laws and to obtain any required licenses or classification to export, re-export or import the Service and any technical information provided by Octane AI. You agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist countries as specified in the U.S. export laws or control laws of other countries. You will not use the Service for prohibited nuclear, missile, or chemical biological weaponry end uses. Octane AI assumes no responsibility for your failure to obtain any necessary export approvals or for your violation of any export or import control laws.
- c. Force Majeure. Octane AI will not be liable under this Agreement by reason of any failure or delay in the performance of its obligations hereunder on account of strike, riot, insurrection, fire, flood, storm, acts of god, war, governmental action, labor conditions, earthquakes, or any other cause that is beyond the reasonable control of Octane AI.
- d. Assignment. You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of Octane AI. Octane AI may assign this Agreement, including all its rights hereunder, without restriction. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- e. Survival. The provisions of this Agreement that are intended to survive the termination of this Agreement by their nature will survive the termination of this Agreement, including, but not limited to, Sections 2 (General), 6 (Fees; Payments), 8 (External Services and Third-Party Terms), 9 (Your Use of the Service and Octane AI Content), 10 (Ownership), 11 (Data Security), 12 (Confidentiality), 14 (Consequences of Violating These Terms of Service), 15 (Changes to the Service or These Terms of Service), 16 (Third-Party Interactions and Disputes), 17 (Termination), 18 (No Warranty), 19 (Limitation of Liability), 20 (Third-Party Elements), 21 (Indemnity), 22 (Notice of Claims of Copyright Infringement), 23 (Arbitration and Class Action Waiver), 24 (Governing Law and Jurisdiction), and 25 (Miscellaneous).
- h. Waiver. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
- i. Headings. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions.
- j. Severability. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
- k. Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Octane AI as a result of this Agreement or use of the Service.
- l. Contacting Octane AI. You can contact Octane AI, Inc. by e-mail at firstname.lastname@example.org, or by U.S. Post at PO Box 7775 #94590, San Francisco, CA 94120-7775, USA; ECM #94590 (must include).