IMPORTANT - READ THIS CAREFULLY BEFORE ACCESSING AND USING THE OTIXO SERVICES.
Welcome to the Otixo web site (the “Site”) and the Otixo application (s) that you can access through the Site (the “App”) are operated by Otixo, Inc. (“Otixo,” “we,” “our,” or “us”). Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access and/or use the Site, the App and Otixo services provided to you by Otixo through the Site (the “Service”).
For the purposes of these Terms, “you” means you, the person using the Site, and, if applicable, the person that agrees to the Terms in Sections B and C when registering for an account. You and any persons that you authorize to use your account may be referred to in these Terms as the “User.”
BY ACCESSING OR USING ANY OF THE SERVICE OR THE APP YOU AGREE TO BE BOUND BY THE TERMS OF SECTION A AND SECTION C BELOW, WHICH CONTAIN PROVISIONS APPLICABLE TO ALL USERS OF THE SERVICE, INCLUDING CASUAL VISITORS TO THE SITE. IF YOU CHOOSE TO REGISTER FOR AND CREATE AN ACCOUNT ON A SITE, YOU MUST ALSO READ AND AGREE TO BE BOUND BY THE TERMS SET FORTH IN SECTION B, IN ADDITION TO THE TERMS OF SECTION C, BY CLICKING ON THE “I ACCEPT” BUTTON SET FORTH AT THE END OF THESE TERMS. YOU ALSO ACKNOWLEDGE THAT YOUR SUBMISSION OF THE CREDIT CARD PAYMENT FORM SERVES AS YOUR AGREEMENT TO THESE TERMS.
In the case of inconsistencies between these Terms and information included in off-line materials (e.g., promotional materials and mailers), these Terms will always govern and take precedence.
1. Availability. Otixo uses reasonable efforts to ensure that the Service are available 24 hours a day, 7 days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Otixo. Otixo will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Otixo. You agree that Otixo shall not be liable to you for any modification, suspension or discontinuance of the Service. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. You are responsible for obtaining access to any Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
2. Trademarks. All brand, product and service names used in the Service which identify Otixo are proprietary marks of Otixo. All brand, product and service names used in the Service which identify third parties and their products and Service are proprietary marks of such third parties. Nothing in the Service shall be deemed to confer on any person any license or right on the part of Otixo or any third party with respect to any such image, logo or name.
3. Copyright. Unless otherwise stated in these Terms or on the Site, Otixo is the owner of all copyright and database rights in the Service and its contents. You may not publish, distribute, extract, reuse or reproduce any such content in any material form (including photocopying or storing it in any medium by electronic means) other than in accordance with these Terms.
4. External Links. From time to time Otixo may provide links that will take you to third party website. These links are provided for your convenience only. If you decide to access linked website you do so at your own risk. Otixo does not endorse or take responsibility for the content on other website or the availability of other website and you agree that Otixo is not liable for any loss or damage that you may suffer by using other website.
5. Amendment of Terms. We reserve the right to amend these Terms agreed to by you from time to time without notice. Your continued use of the Site constitutes acceptance of any amendments, additions, or modifications to these Terms.
6. Contact. Otixo is located in Boulder, Colorado, U.S.A. Any questions, comments or suggestions, including any report of violation of these Terms should be provided to the Administrator as follows:
By Postal Mail:
954 Pearl St. Suite B, Boulder CO, 80302 USA
1. Registration. In consideration of your use of the Service, you represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Customer Data”) and (b) maintain and promptly update the Customer Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). To register as a User of the Service you must be 18 years or over. Minor children under the age of 18 who wish to access the Service must obtain permission from their parents and their parents must agree to these Terms. Please remember that the Service is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the Service and/or Content (as defined in Section 5 below) are appropriate and inappropriate for your child.
2. Amendment of Terms. You agree that Otixo retains the right to amend these Terms and the Site, including service offerings and prices at any time, for any reason, and without notice, and the right to terminate the Site or any part of any of the Site. You agree to review the posting of these Terms here periodically to be aware of such changes. Your continued use of a Site constitutes acceptance of any amendments, additions, or modifications to these Terms. Any amendments or modifications made by Otixo shall be prospective only. You will be bound by all such modifications, whether or not you have notice thereof. If you have created an account, we shall notify you of any material changes to these Terms by email sent to the address you have provided to us for your account. If you continue to use the Service once you have been notified of the changes to these Terms, you will be deemed to have accepted those changes.
3. Access and Use Rights. Otixo grants you a personal, limited, revocable, non-exclusive and non-transferable right to access and use the Site and Service, and, if applicable the App. These rights are exclusive to you and you may not sublicense the use of the Site or the App. Otixo expressly retains all ownership rights, title and interest in and to all aspects of any the App (and any other software), Service and the Site, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Site. You may not modify the Site nor the App, create derivative works of the Site or the App, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Site or the App that would reveal any source code, trade secrets, know-how or other proprietary information. These rights shall not be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Site or the App. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Site or displayed by, on, or in the Site. You may use the Site and the App only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Site or the App after any termination or expiration of your agreement to these Terms for any reason.
4. Password. You will create a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Otixo of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Otixo cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
5. Your Content.
5.1 Generally. Otixo does not claim ownership rights in any information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials or content you make available or use in connection with the Site and the Service or use in connection with your account (the “Content”). You remain the owner of all Content that you submit to the Service and as a condition to your use of the Site and the Service, you represent and warrant to Otixo that you are the owner of the copyright to the Content you submit to the Service or that you have written permission from the copyright owner to submit such Content. You agree to indemnify and hold Otixo harmless for any violation of this section.
5.2 Content You Upload to the Service. If you upload any Content to the Service through the App, such Content shall be “Private Content”. Otixo does not claim any ownership or license rights in or to any Private Content, and will not use any Private Content except as set forth in this Agreement.
5.3 Content You Make Publicly Available on the Site. Although Otixo claims no ownership or license rights with respect to your Private Content, if you submit any Content to publicly accessible areas of the Site, such Content shall be “Publicly Available Content”. By submitting your Publicly Available Content and accepting the consideration set forth in these Terms, as consideration for our permitting you to use the Site and the Service, you unconditionally grant to Otixo a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the Publicly Available Content, to (a) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Publicly Available Content in any medium or format, whether now known or hereafter discovered and (b) exercise any and all other present or future rights in the Publicly Available Content. . In addition, you warrant that all moral rights in any Publicly Available Content have been waived.
6.1 You may place Content on the Site only in accordance with the following limitations. You may NOT store any of the following material on the Site or obtain any such material using the Site:
6.2 While Otixo does not and cannot review all material on the Site, and is not responsible for its content, Otixo reserves the right to remove, delete, move, or edit Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable. Otixo will not be liable for the Content of any submission. You agree to indemnify and hold Otixo harmless for any violation of this provision.
7. Pricing and Payment. The Service can be accessed (a) as a free, trial-based service allowing unlimited free access for 14 days (the “Free Service”), (b) as a paid Service for which you purchase a one-time license or a monthly subscription having unlimited* (subject to the terms and conditions herein) monthly bandwidth (the “Business Service”). The fees for the Business Service provided on the Site are posted on the Site. Fees are subject to change without notice. You agree to pay Otixo in advance the applicable fees for the Business Service provided by Otixo under these Terms. Otixo will bill your credit card for all fees. You will provide Otixo with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information. If such information is false or fraudulent, Otixo reserves the right to terminate the Service and your access to the Site in addition to seeking any other legal remedies. Otixo is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Otixo. Each charge will be considered valid unless disputed by you in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. All fees will be paid in U.S. dollars and are due as set forth on the Site. Otixo’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Otixo’s income.
8. Third Party Software and Linking. Although we may make software, hyperlinks, and other products of third-party companies available to you, your use of such products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products, and the agreement for your use will be between you and such third party. Otixo makes no warranty with regard to the products or web site of any other entity. Otixo has no control over the content or availability of any third-party software or web site. In particular, (a) Otixo makes no warranty that any third-party software you download or web site you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses and (b) Otixo notifies you that it is your responsibility to become familiar with any web site’s privacy and other policies and terms of service, and to contact that site’s webmaster or site administrator with any concerns.
9. Monitoring of Content. You acknowledge, consent and agree that Otixo may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Otixo, its users and the public.
10. Suspension and Termination of Access and Membership. Otixo reserves the right to suspend or terminate your account and use of the Site, at any time, without notice, for any reason, including but not limited to the following:
Further, you agree that Otixo shall not be liable to you or any third party for any termination of your access to the Site. Otixo reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Otixo shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. Disclaimer of Third Party Actions. You acknowledge that Otixo does not and cannot control the flow of data to or from the Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). Although Otixo will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to your use of the Service, Otixo cannot guarantee that such events will not occur. Accordingly, Otixo disclaims any and all liability resulting from, or related to, such events.
13. Representations and Warranties by You. Your understand and acknowledges that all of your rights to use and access the third party services, sites and materials and receive data arise from the third parties' services and applicable agreements to which you must agree (“Third Party Agreements”). Accordingly, you represent and warrant that: (a) that you shall comply with and shall not violate any Third Party Agreements; and (b) that you will not violate any applicable law or regulation, or cause a breach of any agreement with any third party, in connection with the performance of its obligations and use of the Services. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Otixo shall have the right to immediately suspend any of the Services in order to prevent harm to Otixo or its business and to limit any potential liability. If practicable, Otixo may provide notice and opportunity to cure. Once cured, in Otixo’s discretion, Otixo will use reasonable efforts promptly restore the Services. You agree to indemnify and hold Otixo harmless for any liability arising from or related to your breach of the foregoing warranties.
14. Disclaimer of Warranty. THE SERVICE AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, OTIXO MAKES NO WARRANTY THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE SITE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SITE, INCLUDING THE SERVICE WILL BE AVAILABLE, OR THAT DATA ARE SECURE FROM UNAUTHORIZED ACCESS. OTIXO MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICE, PROMOTIONS, OR THE DELIVERY OF ANY GOODS OR SERVICE, PURCHASED, ACCESSED OR OBTAINED THROUGH THE SITE OR ADVERTISED THROUGH THE SITE. NO ADVICE OR INFORMATION GIVEN BY OTIXO, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY. IN ADDITION, OTIXO DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
1. Rules of Conduct
1.1 The following Rules of Conduct apply to the Site. By using any of the Site, you agree that you will not distribute any Content that:
1.2 You expressly agree that you are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in any unacceptable uses of the Service, which include, without limitation, use of the Service to:
1.3 We cannot and do not assure that other Users are or will be complying with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
2. Copyright, Other Proprietary and Privacy Protection for Other Users’ Content on the Site. Otixo hereby notifies you that all the information, content, image files, software and materials on the Site may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. You understand that Otixo is unable to provide you with permission to copy display or distribute material for which you do not own the copyright or other intellectual property rights. You may not copy or distribute such material without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property law violations that you may incur as a result of your activities on the Site. Otixo has the absolute right to terminate your account or exclude you from any Site if you use our Service to violate the intellectual property rights or other rights of third parties. You agree to indemnify and hold Otixo harmless for any violation of this provision.
3. Claims of Copyright Infringement
3.1 We have adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of Users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to the service provider’s designated agent.
Notification must be submitted to the following:
Service Provider: Otixo
Name: Legal Department
Full Address: 954 Pearl St. Suite B, Boulder CO, 80302 USA
3.2 To be effective, the notification must be a written communication that includes the following:
3.3 We may give you notice that we have removed or disabled access to certain material by means of a general notice on the Site, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to your physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
4. Limitation of Liability.
4.1 YOU ACKNOWLEDGE, BY YOUR USE OF ANY OF THE SITE OR SERVICE, THAT YOUR USE OF THE SITE OR SERVICE AND ANY RELIANCE UPON EITHER IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH YOUR USE OF THE SITE OR SERVICE. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL OTIXO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF OTIXO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICE, FROM ANY CHANGES TO THE SITE OR THE SERVICE OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE SITE AND THE SERVICE AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH CONTENT.
4.2 IF YOU ARE DISSATISFIED WITH THE SITE OR THE SERVICE OR WITH ANY OF THESE TERMS, OR FEEL OTIXO HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE. THE TOTAL LIABILITY OF OTIXO TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE TERMS OR USE OF THE SITE OR THE SERVICE SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE. IT IS THE INTENTION OF YOU AND OTIXO THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
4.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
5.1 Applicable Law and Jurisdiction. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site or the Service or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred. You and Otixo agree that these Terms and any claims hereunder shall be governed by and subject to the laws of the state of Colorado, without giving effect to any principles of conflicts of law. You agree to personal jurisdiction by and venue in the state courts in Boulder, Colorado and the federal courts in Denver, Colorado.
5.2 No Resale of Services. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
5.3 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Otixo as a result of these Terms or use of the Site or the Service.
5.4 Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
5.5 Force Majeure. Otixo will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond Otixo’s reasonable control.
5.6 Waiver. The failure of Otixo to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Otixo in writing.
5.7 Construction. The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
5.8 Entire Agreement. These Terms constitute the entire agreement between you and Otixo and govern your use of the Site and the Service, superseding any prior agreements between you and Otixo. The failure of Otixo to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and Otixo nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, OTIXO IS UNWILLING TO PROVIDE SERVICES TO YOU, AND YOU SHOULD CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE THE REGISTRATION PROCESS.