Terms Of Use – OptixEQ© EquiLytix LLC

By continuing to access, link to, or use this web site, or any service on this web site, you signify YOUR ACCEPTANCE OF THE TERMS OF USE OF THIS AGREEMENT.

Agree to the terms:
I agree

This Agreement was last updated on: February 5, 2014.

EquiLytix LLC (“EquiLytix”) reserves the right to amend, remove, or add to the Agreement at any time. EquiLytix will provide notice of modifications to this Agreement on its home page next to the “Terms and Conditions” link for a period of thirty days following such modification and in the second paragraph at the top of this page. Such modifications shall be effective immediately upon the posting of these notices. Accordingly, you should look for these notices whenever accessing, linking to, or using this site. Your access, link to, or use of the web site, or any service on this web site, after the posting of notice of modifications to the Agreement will constitute YOUR ACCEPTANCE OF THIS AGREEMENT, as modified. If, at any time, you do not wish to accept this Agreement, you may not access, link to or use this web site. Any terms and conditions proposed by you which are in addition to or which conflict with the Agreement are expressly rejected by EquiLytix and shall be of no force or effect.

1. GENERAL

(a) You represent that you have read and agree to be bound by this Agreement.

(b) You represent, warrant and covenant that: (i) you have the power and authority to enter into this Agreement, and (ii) you are at least eighteen (18) years old.

2. INTELLECTUAL PROPERTY

(a) This web site, including but not limited to text, data, content, photographs, video, audio and graphics, and goods contained and/or presented therein (the “Service”), is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. The Service is also protected as a collective work or compilation under U.S. copyright and other laws and treaties. All individual articles, columns and other elements making up the Service are also copyrighted works. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service. You acknowledge that the Service has been developed, compiled, prepared, revised, selected, and arranged by EquiLytix and its affiliates (collectively “EquiLytix”) and others (including certain other information sources) through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of EquiLytix and such others.

(b) All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Service (the “Intellectual Property Rights”) shall, as between you and EquiLytix, at all times be and remain the sole and exclusive property of EquiLytix. All present and future rights in and title to the Service (including the right to exploit the Service and any portions of the Service over any present or future technology) are reserved to EquiLytix for its exclusive use. Except as specifically permitted by this Agreement, you may not copy or make any use of the Service or any portion thereof. Except as specifically permitted herein, you shall not use the Intellectual Property Rights or the Service, or the names of any individual participant in, or contributor to, the Service, or any variations or derivatives thereof, for any purpose, without EquiLytix’s prior written approval. In no event shall you sell the Service or any portion thereof in any manner at any time nor may you publish or present the Service or any portion thereof on any other web site or publicly display it in any manner.

(c) This web site and all systems, programs, records, statistics, data, documentation, and any other material utilized or developed by EquiLytix in connection with this Agreement and the Services supplied hereunder shall be and remain the sole property of EquiLytix or its third party licensors. All rights, title to, and interest in, including copyrights and renewals thereof, all systems, programming, records, statistics, data, documentation, operator’s manuals, components, and accessories comprising the system furnishing the services hereunder and provided by EquiLytix shall remain the property of EquiLytix or its licensor at all times.

(d) OptixEQ™, OptixPLOT™, OptixNOTES™, OptixCLOCKER™, OptixNOTES™ OptixGRID™, OptixANALYST™ are trademarks of EquiLytix LLC. You shall in no way appropriate such marks as your own, nor shall you use such marks without having first obtained the express written permission of EquiLytix.

(e) You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based upon the Service or any portion thereof for any products, without EquiLytix’s written consent which EquiLytix may provide to you via email or another writing.

3. YOUR USE RIGHTS

(a) You understand and agree that the Services are provided for use in an online or hardcopy print environment only. EquiLytix, at its sole discretion, will determine if user activity patterns indicate that information is being used for other, unauthorized, purposes. If EquiLytix determines that information is being used for unauthorized purposes or if you violate any other provision of this Agreement, EquiLytix may immediately terminate your subscriptions and deactivate your accounts, without refund or credit and without notice to you.

(b) You understand and agree that EquiLytix provides its users with the capability to search and display information. Use of this capability for reasons other than as provided for in this Paragraph 3(a) is prohibited and EquiLytix shall restrict access for unauthorized use, which use shall be considered a material breach of this Agreement.

(c) You agree: (i) That all information acquired hereunder is for your personal use and is not for resale or for distribution to any third party; (ii) not to use any robot, spider, scraper or any other automated means, by whatever name known, with regard to the web site for any purpose without EquiLytix expressly providing, in an authorized writing, such permission; (iii) that you may not use the Service for any illegal purpose or in any manner inconsistent with this Agreement; (iv) to use the Service solely for your own noncommercial use and benefit and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity; (v) not to use, transfer, distribute, or dispose of any information contained in the Service in any manner that could compete with the business of EquiLytix or its suppliers; (vi) that you may not copy, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish display, perform, modify, upload to, create derivative works from, transmit, or in any exploit any part of the Service except that you may make one copy for your own personal, noncommercial use that you retain all copyright and other notices appearing within or on the Service; (vii) you may not offer any part of the Service for sale or distribute it over any other medium including, but not limited to, a computer network or hyperlink framing on the Internet without the prior written consent of EquiLytix; and (viii) you may not use the Service in any way to improve the quality of the sold or contributed by you to any third party.

(d) With regard to the web site, you agree not to: (i) take any action that imposes, or may impose, in EquiLytix’s sole discretion, an unreasonable or disproportionately large load on EquiLytix’s infrastructure; (ii) copy, reproduce, modify, frame, create derivative works from, distribute or publicly display any content (except for your internal personal non-commercial use), disseminate, distribute, or otherwise transfer or provide access to information acquired from the web site without EquiLytix having first provided you with an authorized signed writing expressly permitting you to do so; (iii) interfere or attempt to interfere with the proper working of the web site or any activities conducted on the web site; (iv) bypass measures we may use to prevent or restrict access to the web site; (v) access web site by any means other than through the interface that is provided by EquiLytix for use in accessing the web site; or (vi) otherwise violate the limited scope of permissions expressly granted in this Agreement.

(e) You may terminate this Agreement, with or without cause and at any time, by discontinuing your use of the web site and destroying all materials obtained from the web site.

(f) As part of the registration and account creation process necessary to obtain access to certain portions of the Service, including those portions that require a fee or payment for access, you will select a username and a password. You will provide EquiLytix with certain registration information, all of which must be accurate, truthful, and updated. You shall not: (i) select a username already used by another person; (ii) use a username in which another person has rights without such person’s authorization; or (iii) use a username or password that EquiLytix, in its sole discretion, deems offensive or inappropriate. EquiLytix reserves the right to deny creation of your account based on EquiLytix’s inability to verify the authenticity of your registration information. You shall be solely responsible for maintaining the confidentiality of your username and password. You shall immediately notify EquiLytix of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your use or credit card information. If the computer system on which you access the Service is sold or transferred to another party, you warrant and represent that you will delete all cookies and software files obtained by or through use of the Service. You agree to maintain only one account with the Service at any time and certify that you currently have no other account(s) with the Service.

(g) You shall be responsible for all electronic communications, including account registration and other account holder information, email and financial and other data (“Electronic Communications”) entered through or under your username and password. You authorize EquiLytix to rely upon any information EquiLytix receives from your username and password and you acknowledge that EquiLytix shall not, in any way, be liable as a result of EquiLytix relying on any such information provided by you or provided under your username and password. EquiLytix will act as though any Electronic Communications it receives under your username and password were sent by you. You agree to immediately notify EquiLytix if you become aware of any loss or theft or unauthorized use of your username and password.

4. CHARGES AND PAYMENT

(a) EquiLytix reserves the right to charge fees for access to portions of the Service or the Service as a whole at any time. If at any time EquiLytix requires a fee for portions of the Service or the Service as a whole, EquiLytix will require you to register and create an account. You shall pay all fees and charges incurred through your account at the rates then in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any products or services offered for sale through the Service by EquiLytix or by any other vendor or service provider. All fees and charges shall be billed to you, and you shall be solely responsible for their payment. You shall pay all applicable taxes relating to the use of the Service through your account (including the payment of any taxes imposed on by the national and/or local jurisdictions of and within your country).

(b) Refunds or credits may be granted at the sole and absolute discretion of EquiLytix. Refund or credit requests should be submitted for review to the following address: https://optixeq.com/contact-us/. In the event of an EquiLytix system failure while you are purchasing or receiving Services, EquiLytix will not charge your credit card account, or will provide a refund or credit for such usage, provided that the relevant Service is not completely received by you.

5. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL EquiLytix, ITS OWNERS, PARTNERS, AFFILIATES AND THEIR RESPECTIVE SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES EVEN IF EquiLytix HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM USE OF OR INABILITY TO USE THE SERVICE OR ANY LINKS OR ITEMS ON THE SERVICE, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EquiLytix’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS WEB SITE OR ANY SERVICES MADE AVAILABLE ON THIS WEB SITE.

6. NO WARRANTIES

(a) YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND ACKNOWLEDGE THAT THE SERVICE AND ANYTHING CONTAINED WITHIN THE SERVICE, INCLUDING, BUT NOT LIMITED TO, CONTENT, SERVICES, GOODS, OR ADVERTISEMENTS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EquiLytix MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS OR NONINFRINGEMENT AS TO THE SERVICE, ITS CONTENTS OR TO ANY MATTER WHATSOEVER

(b) EquiLytix does not warrant that the Service is compatible with your equipment or that the Service, or e-mail sent by EquiLytix or its representatives, is free of errors or viruses, worms or “Trojan horses,” or any other harmful, invasive, or corrupted files, and EquiLytix shall not liable for any damage or injury you may suffer as a result of such destructive features. You agree that EquiLytix, its owners, partners, affiliates and their respective suppliers, agents, directors, officers, employees, representatives, successors, and assigns shall have no responsibility or liability for any fault, inaccuracy, omission, delay, or any other failure in the Service caused by your computer equipment or arising from your use of the Service on such equipment.

(c) The content of other Web sites, services, goods, or advertisements that may be linked to the Service is not maintained or controlled by EquiLytix. EquiLytix is therefore not responsible for the availability, content, or accuracy of other Web sites, services, or goods that may be linked to, or advertised on, the web site. EquiLytix does not: (i) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Service; (ii) guarantee the accuracy, completeness, usefulness or adequacy of any other Web sites, services, goods, or advertisements that may be linked to the Service; or (iii) make any endorsement, express or implied, of any other Web sites, services, goods, or advertisements that may be linked to the Service. EquiLytix is also not responsible for the reliability or continued availability of the telephone lines, wireless services, communications media, and equipment you use to access the Service. You understand that EquiLytix and/or third-party contributors to the Service may choose at any time to inhibit or prohibit their content from being accessed by you.

(d) In addition to the other provisions of this Section 6, you understand and agree that with multiple processing of complex data, and with reliance upon information acquired from multiple sources, errors and omissions can and do occur despite commercially reasonable efforts to avoid them, and EquiLytix expressly disclaims any responsibility or liability for any loss or consequential damages resulting to you or any third party from errors or omissions in the Service. EquiLytix shall not be liable for any loss or damage, delay in performance or nonperformance caused by equipment malfunction or breakdown, information unavailability, strikes or other labor disputes, riots, fire, insurrection, acts of terrorism, war, failure of carriers, the elements, accidents, acts of God, or any other causes beyond EquiLytix’s control whether or not similar to the foregoing.

(e) Customer acknowledges that EquiLytix is not responsible for notifying Customer of any upgrades, fixes or enhancements to any Service or for any compromise or loss of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet.

7 LINKING TO AND FRAMING THIS WEBSITE OR ITS CONTENT

(a) YOU MAY NOT LINK TO OR FRAME THIS WEB SITE, OR ANY PORTION THEREOF, EXCEPT AS PROVIDED HEREIN.

(b) Intellectual Property. Upon linking to this Web site pursuant to this Agreement, you will be granted a non-exclusive, non-transferable, royalty-free sub-license to use the EquiLytix mark owned by EquiLytix LLC solely for providing an underlined, textual link from your web site to optixeq.com. No other use of EquiLytix’s marks, names or logos is permitted without express written permission from EquiLytix.

(c) Restrictions on Linking to this Web Site. Without limiting other provisions contained in this Agreement, you may include a link(s) on your web site to the publicly accessible web pages on the EquiLytix website (i.e., any web page which does not require a username and password and/or restrict access). You may not link to optixeq.com any site containing an inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information that violates any applicable intellectual property, proprietary, privacy or publicity rights. If EquiLytix determines, in its sole and absolute judgment, that a web site linking to optixeq.com is inappropriate for association with EquiLytix, EquiLytix shall have the right to block traffic from the linked web site.

(d) Restrictions on Framing Activities. EquiLytix is concerned about the integrity of this web site when it is accessed in a manner solely determined by third parties or viewed in a setting solely created by third parties. Specifically, EquiLytix is concerned with activities such as bringing up or presenting content of this Web site within another Web site (“framing”). In this regard, without limiting the provisions contained in this Agreement, you may not frame any web page from optixeq.com, except with EquiLytix’s express written permission. Further, you may not archive, cache, or mirror any optixeq.com web page or portions of a web page. If you would like to use, reprint, frame, or redistribute any optixeq.com Service other than as permitted herein, you must request permission from EquiLytix by writing to EquiLytix. Please include: (a) your name, e-mail address, and telephone number; (b) the name of your company; (c) the web site address(es) where the proposed use will occur; and (d) specific details about the contemplated linking or framing activities, including the content or web page(s) of this web site which you would like to use. Nevertheless, EquiLytix shall be under no obligation to grant your request.

8. MISCELLANEOUS

(a) The failure of EquiLytix to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. No waiver of any term or condition of this Agreement shall be effective unless made in writing by EquiLytix.

(b) This Agreement represents the entire agreement between you and EquiLytix and supersedes all prior agreements, understandings, and negotiations, both written and oral, between you and EquiLytix with respect to the subject matter hereof.

(c) This Agreement shall be governed and construed in accordance with the laws of the State of Florida, without giving effect to conflicts-of-law principles thereof. You agree to submit to the personal jurisdiction of the state and federal courts located in the County of Hillsborough, State of Florida with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of this Agreement.

(d) If any provision of this Agreement or its application is held to be invalid, illegal, or unenforceable in any respect, the validity, legality or enforceability of any of the other provisions and applications herein shall not in any way be affected or impaired.

(e) You agree, at your own expense, to indemnify, defend and hold harmless EquiLytix, its owners, partners and affiliates and their respective suppliers, agents, directors, officers, employees, representatives, successors, and assigns from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with the Service, or any links on the Service, including, but not limited to: (i) your use of the Service; (ii) any use of the Service via your computer; (iii) someone else using your username and password to access the Service; (iv) a violation of this Agreement by you or anyone using your computer (or your user account, where applicable); (v) any deletions, additions, insertions or alterations to, or any unauthorized use of, the Service by you or someone using your computer (or account, where applicable); (vi) any misrepresentation by you in connection with your web site registration or any breach of a representation or warranty made by you contained herein; or (vii) any breach of any covenant or agreement to be performed by you hereunder. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action, or proceeding attributable to any such claim. EquiLytix reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with EquiLytix in asserting any available defense. You acknowledge and agree to pay EquiLytix’s reasonable attorneys’ fees incurred in connection with any and all lawsuits brought against you by EquiLytix under this Agreement and any other terms and conditions of service on this site, including without limitation, lawsuits arising from your failure to indemnify EquiLytix pursuant to this Agreement.

(f) EquiLytix does not represent that materials in the Service are appropriate or available for use in any particular location. Those who choose to access the Service do so on their own initiative and are responsible for compliance with all applicable laws. Software from the Service is subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons, and specified persons involved in the manufacture or sale of Improvised Explosive Devices (together referred to as “U.S. Prohibited Party Lists”). By downloading or using any Service, you represent and warrant that you are not (a) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or (b) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.

(g) You accept that EquiLytix has the right to change the content or technical specifications of any aspect of the web site or the Service at any time in EquiLytix’s sole discretion. You further accept that such changes may result in your being unable to access the Service. Sections 2, 5, 6 8 and any payment obligations you incur shall survive any termination of this Agreement.

(h) The section titles in this Agreement are used solely for the convenience of you and EquiLytix and have no legal or contractual significance.

(i) If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.

(j) This Agreement and any other terms and conditions of service on this site, and its successor, constitute the entire agreement between you and EquiLytix and govern your use of the Service.

9. DISCLAIMER

Data provided or compiled by Equibase Company LLC generally are accurate but errors and omissions occur as a result of incorrect data received from others, mistakes in processing and other causes. EquiLytix LLC and Equibase Company LLC disclaim responsibility for the consequences, if any, of such errors, but would appreciate having any such errors called to their attention.