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OctopusCity.com is in the business of providing a Smart Address
Book and Contact Management service both in a free downloadable
software application format and a fee based web format, collectively
know as OctopusCity.com. You, an individual or entity (the Subscriber),
has a need to manage your address book and contacts. By downloading
and using the OctopusCity.com software, using the web based
service and/or clicking Accept to these terms, you the Subscriber
accept the terms of this agreement with OctopusCity.com. If
you do not accept the following Terms of Service as described
in this document and the Privacy Policy, do not mark the accept
box of these terms, do not use the Downloadable OctopusCity.com
Smart Address book and Contact Management Software and do not
use the OctopusCity.com Web service.
The following Terms of Service represent a legal binding agreement
between you an individual or an entity and OctopusCity.com a
New York based LLC.
1. Definitions
(a) “Service”
means the downloadable OctopusCity.com
software and the web based services that the Subscriber will
use to manage their contacts information. The downloadable
software, once installed stores all of the Subscriber’s
contacts information locally on the Subscriber’s computer.
Certain Personally Identifiable Information is stored on our
servers. See Privacy Policy for more details. If the Subscriber
purchases the OctopusCity.com Web service, all of the subscriber’s
contacts and related data will be stored both on our servers
and on locally in the downloadable software.
(b) “OctopusCity.com Marks” means
the OctopusCity.com’s trademarks and logos that OctopusCity.com
wishes to have displayed in connection with the Software and
the Service and on the Web Service Pages.
(c) “Data” means
all data and information provided by (or collected about)
Subscriber, including, but not limited to, identifying information
(e.g., name, address), payment-related information (e.g.,
credit card or employer) and site traffic information (e.g.,
Service Pages visited, site of origin, departure destination
site.
(d) “Hosting Services” means
OctopusCity.com’s hosting of the Web Service Pages pursuant
to this Agreement.
(e) “Subscriber” means
individual subscribers who access the downloadable software
and web service pages and interact with the service through
the software or Internet in connection with address book and
contact management and training programs.
(f) “Authenticated Email Address” means
an email address owned by the subscriber that has received
a registration email directly from OctopusCity.com and from
which OctopusCity.com has received an authentication response
by Subscriber.
(g) “Web Service Pages”
means all pages of the Service (including, without limitation,
any screens associated with the Service or emails or other
communications sent to Subscriber or others by operation of
the Service) provided by OctopusCity.com for Subscriber hereunder.
2. The Services. By
accepting the terms of this Agreement, you hereby subscribe
to the Service and OctopusCity.com will provide the Service
in accordance with the terms hereof. OctopusCity.com hereby
grants to Subscriber a non-exclusive, non-transferable right
to utilize the Service solely in accordance with the terms hereof,
solely for Subscriber’s own personal use or internal data
processing and analytic needs of the entity.
3. Access to Service.
(a) Access.
OctopusCity.com shall issue to Subscriber a unique user ID
and password with which Subscriber can access the Downloadable
software and Web Service Pages. Subscriber understands that
it is their sole responsibility to safeguard their username
and password and that the Subscriber shall be responsible
for all transactions conducted through the Web Service Pages
using this user ID and password.
4. Use of Service and Data.
(a) Service.
Subscriber may use the Service solely for Subscriber’s
own data processing and analytic needs. Subscriber shall not
(a) display, reveal, sublicense or otherwise permit access
to the Service, in any form, to any third party; (b) transfer
Subscriber's rights or obligations under this Agreement; (c)
modify, copy, or make derivative works based on the Service
or Software; (d) disassemble, decompile, reverse engineer
or otherwise attempt to derive source code or other trade
secrets from the Service, the Software, or any component of
the Service or Software; (e) remove or alter any copyright
notices, trademark notices, or other proprietary legends on
the Service or on any materials produced by the Service; (f)
create Internet links to or from the Service for others or
frame or mirror any of the Web Service Pages or OctopusCity.com’s
web site pages; (g) use the Service to transmit material containing
software viruses or other harmful computer code, files, scripts,
agents or programs; (h) interfere with or disrupt the integrity
or performance of the Service or any data contained therein;
(i) attempt to gain or grant to others unauthorized access
to the Service; (j) rent, lease, or loan the Service or any
portion thereof to any third party; or (k) use the Service
to act as a service bureau, provide multi-user licensing capability
to any party, or enter into a timesharing arrangement by which
any third party may utilize the Service. (l) use the service
in any way that is contrary to the law.
(b) OctopusCity.com is constantly
innovating in order to provide the best possible experience
for its users. Subscriber acknowledges and agrees that the
form and nature of the Services may change from time to time
without prior notice to you.
(c) You acknowledge and agree
that while OctopusCity.com may not currently have set a fixed
upper limit on the number of transmissions and or syncs that
you may send or receive through the Services or on the amount
of storage space used for the provision of any Service, such
fixed upper limits may be set by OctopusCity.com at any time,
at OctopusCity.com’s discretion.
(d) Data Ownership. Subscriber
owns all of the data which Subscriber uploads or inputs into
the OctopusCity.com Service and OctopusCity.com and its affiliates
will not resell the data in any form to a third party unless
otherwise specified in this agreement or the Privacy Policy
document.
5. Subscriber Obligations.
Subscriber is solely responsible for collecting, inputting and
updating all Subscriber Data relating to its use of the Service
and for creating backup copies of its Data on a daily basis.
Subscriber is responsible and liable for the accuracy, completeness,
quality, integrity, legality, reliability and appropriateness
of all Subscriber Data and any third party claims regarding
same. Subscriber represents and warrants that the Subscriber
Data shall not (a) infringe any copyright or trademark, (b)
misappropriate any trade secret, (c) infringe any U.S. patent,
(d) be deceptive, defamatory, obscene, pornographic or unlawful,
(e) contain any viruses, worms, or other malicious computer
programming codes intended to damage a user’s system or
data or (f) otherwise violate the rights of a third party.
6. Fees and Payment.
(a) Services. OctopusCity.com
is a free Smart Address Book / Contact Management software
and service for individuals and entities. Upgrades to the
fee based services like OctopusCity.com Web and Mobile as
well as partner services can be requested directly from the
OctopusCity.com Free software. If the Subscriber specifically
requests one or more of these fee based products and services,
the subscriber will be asked to supply credit card information
at that time to conclude the purchase.
7. Term. This
agreement will continue in force until the sooner of a) Subscriber
requests to terminate their account through their OctopusCity.com
profile page or via email request. b) OctopusCity.com elects
to terminate the Subscriber account on its own discretion and
notifies subscriber via email to an authenticated email address.
8. Customer
Support. OctopusCity.com will
provide email customer support during the hours of 9:00am EST
to 6:00pm EST. OctopusCity.com will make best efforts to respond
to email requests received, within 24 hours.
9. Confidentiality.
OctopusCity.com shall utilize commercially reasonable efforts
to maintain the security and integrity of Subscriber’s
Data stored on OctopusCity.com’s web servers or on the
web servers of OctopusCity.com’s vendors. Please see our
Privacy Policy document for full details.
10. No Warranty or Guarantee. OctopusCity.com
does not and cannot warrant or guarantee that hackers cannot
penetrate its Services and Subscriber acknowledges and accepts
the risk that damage can possibly result there from.
11. Indemnity.
(a) OctopusCity.com Indemnity. OctopusCity.com
shall indemnify and hold Subscriber harmless from and will
defend against any third party claims that the Software infringes
any copyright, misappropriates any trade secret, or infringes
any U.S. patent; provided, Subscriber (i) gives OctopusCity.com
prompt notice of any actual or threatened claim of such infringement
or misappropriation, (ii) gives control of the defense of
such claims to OctopusCity.com, and (iii) cooperates fully,
at OctopusCity.com’s expense, with OctopusCity.com and
its counsel in the defense or settlement of such claims. OctopusCity.com’s
obligation shall not extend to a claim based on any alleged
infringement arising from (A) additions, changes or modifications
to the Software by or on behalf of Subscriber, (B) any incorporation
of the Software or any component thereof into any other product
or process, (C) use of the Software other than as permitted
by this Agreement. This section states the sole, exclusive,
and entire liability of OctopusCity.com to Subscriber and
Subscriber’s sole remedy with respect to ANY THIRD PARTY
infringement CLAIM.
(b) Subscriber Indemnity.
Subscriber shall indemnify and hold OctopusCity.com harmless
from and will defend against any third party claims that the
Subscriber Content (i) infringes any copyright or trademark,
(ii) misappropriates any trade secret or (iii) infringes any
U.S. patent, (iv) is deceptive, defamatory, obscene, pornographic
or unlawful, (v) contains any viruses, worms or other malicious
computer programming codes intended to damage a user’s
system or data, or (vi) otherwise violates the rights of any
third party; provided, that OctopusCity.com (A) gives Subscriber
prompt notice of any actual or threatened claim of such infringement
or misappropriation, (B) gives control of the defense of such
claims to Subscriber, and (C) cooperates fully, at Subscriber’s
expense, with Subscriber and its counsel in the defense or
settlement of such claims. Subscriber’s obligation shall
not extend to such claims to the extent they are based upon
(1) additions, changes, or modifications to Subscriber Data
made by or on behalf of OctopusCity.com without Subscriber’s
approval, or (2) use of Subscriber’s Data other than
as permitted by this Agreement.
12. Warranties. OctopusCity.com
warrants to Subscriber that the Services shall perform substantially
consistent with the published specifications therefore for the
term of this Agreement. OctopusCity.com’s sole obligation
or liability under this warranty shall be to correct any reproducible
error in the Services, in a reasonable time, to perform substantially
in accordance with the published OctopusCity.com specifications
thereof, upon written notice of its failure to so perform from
the Subscriber containing documentary evidence sufficient to
allow OctopusCity.com to replicate the error. OctopusCity.com
does not warrant that the Services will be uninterrupted or
error-free. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, OCTOPUSCITY.COM
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. OCTOPUSCITY.COM
MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE,
PRODUCTS OR SERVICES USED IN CONNECTION WITH THE SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES
IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS
IS" AND “AS AVAILABLE.”
13. Consequential Damages;
Limitation of Liability.
(a) Consequential Damages.
OCTOPUSCITY.COM SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE TO SUBSCRIBER
FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, DATA, RIGHTS
OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS
OF USE OF FUNCTIONALITY, DATA OR EQUIPMENT, EVEN IF OCTOPUSCITY.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING
UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE.
(b) Limitation of Liability. IN
NO EVENT SHALL OCTOPUSCITY.COM BE LIABLE FOR ANY AMOUNT IN
EXCESS OF THE PAYMENTS MADE BY SUBSCRIBER TO OCTOPUSCITY.COM
UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR
TO THE FIRST EVEN GIVING RISE TO SUCH LIABILITY, HOWEVER CAUSED,
AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE.
(c) Acknowledgement. THE
PARTIES ACKNOWLEDGE THAT OCTOPUSCITY.COM HAS SET ITS PRICES
AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS
OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES
SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL
BASIS FO THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE
THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS
SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF
FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE FEES
PAYABLE BY SUBSCRIBER REFLECT THIS ALLOCATION OF RISK.
14. Availability. OctopusCity.com
shall use commercially reasonable efforts to maintain the availability
of its Web Service Pages and to provide the Services on a twenty-four
(24) hour basis (excluding scheduled maintenance and downtime
and failures beyond OctopusCity.com’s reasonable control),
and to back up the Service Pages at least once a week, with
such back-up copies stored in a safe and secure environment
geographically separate from OctopusCity.com’s web server(s).
Notwithstanding the foregoing, OctopusCity.com does not warrant
the availability of the Web Service or the Services and OctopusCity.com
shall not be liable for any failure of OctopusCity.com or OctopusCity.com’s
vendors with regard to the unavailability of the Web Service
Pages or the Services due to the failure of systems, equipment,
services, third party software, a disruption in the connection
between any servers and the Internet, any server or telecommunications
anomalies or any other cause outside of the control of OctopusCity.com
or its vendors.
15. Termination. In
addition to its rights as set forth elsewhere in this Agreement:
(a) For Convenience. OctopusCity.com
may terminate this agreement upon email notification to Subscriber
via an authenticated email address.
(b) For Cause. OctopusCity.com
shall have the right to terminate this Agreement immediately
without notification for:
(i) violation
or breach by Subscriber, its officers, directors, or employees
of any provisions of this Agreement, including, but not
limited to, payment;
(ii) the termination of
the business of the Subscriber;
(iii) voluntary or involuntary
filing of bankruptcy petition or similar proceeding under
applicable state law with respect to Subscriber; or
(iv) Subscriber’s
becoming insolvent or making any assignment for the benefit
of creditors.
(c) Effect of Termination.
Upon expiration or termination of this Agreement for any reason:
(i) OctopusCity.com shall terminate Subscriber’s access
to the Web Service Pages and the Services; (ii) OctopusCity.com
shall have the right to maintain copies of all Data for archival
and other permissible purposes; (iii) Subscriber shall remain
liable for and pay to OctopusCity.com all fees due for Services
provided through the date of termination and all fees which
would have been due to OctopusCity.com through the end of
the then-current period had the Agreement not been terminated.
(d) You acknowledge and agree
that if Octopuscity.com disables access to your account, you
may be prevented from accessing the Services, your account
details or any files or other content which is contained in
your account
16. Dispute Resolution Procedure.
In the event of any dispute arising out of or related to this
Agreement (a “Dispute”) and prior to invoking any
termination remedy or initiating litigation, the following resolution
procedure must be followed. The party invoking the dispute resolution
procedure will provide the other party with a written notice
detailing the nature of the Dispute (a “Dispute Notice”).
Each party shall select a relationship manager with authority
to resolve the Dispute, and the relationship managers shall
meet within ten (10) days from receipt of the Dispute Notice.
In the event that the relationship managers are unable to resolve
the Dispute within ten (10) days from their first meeting, an
officer of each party shall meet within five (5) days thereafter
to discuss and look toward a mutually satisfactory resolution
of the Dispute. In the event that the officers are unable to
resolve the Dispute within ten (10) days from their first meeting,
the parties will submit the Dispute to non-binding mediation
in New York in accordance with the rules of the American Arbitration
Association. At each stage in the escalation process, the parties
agree that they will consider all good faith and reasonable
solutions and exercise all reasonable efforts to resolve the
Dispute.
17. Force Majeure. Any
delay in the performance of any duties or obligations of either
party (except the payment of money owed) will not be considered
a breach of this Agreement if such delay is caused by a labor
dispute; shortage of materials; fire; earthquake; flood; or
any other event beyond the reasonable control of such party,
provided that such party uses commercially reasonable efforts,
under the circumstances, to notify the other party of the circumstances
causing the delay and to resume performance as soon as possible.
18. General
(a) Entire Agreement. Each
party acknowledges that this Agreement, and the Privacy Policy
document constitute the complete and exclusive statement of
the terms and conditions between the parties, which supersede
and merge all prior proposals, understandings and all other
agreements, oral and written, between the parties relating
to this Agreement. This Agreement may not be modified or altered
except by written instrument duly executed by both parties.
(b) Taxes. Subscriber shall,
in addition to the payments required hereunder, pay all sales,
use, transfer or other taxes and all duties, whether international,
national, state or local, however designated, which are levied
or imposed by reason of the transaction contemplated hereby;
excluding, however, income taxes on profits which may be levied
against Front Office. Subscriber shall reimburse OctopusCity.com
for any amount of any such taxes or duties paid or accrued
by OctopusCity.com as a result of this Agreement and the transactions
contemplated hereby.
(c) Governing Law. This Agreement
and performance hereunder shall be governed by the laws of
the State of New York without reference to its conflicts of
laws provisions. The United Nations Convention on Contracts
for the International Sale of Goods will not apply to this
Agreement.
(d) Enforceability. If any
of the provisions of this Agreement is invalid under any applicable
statute or rule of law, it is to that extent to be deemed
omitted.
(e) Assignment. Subscriber
may not assign or sub-license, without prior written consent
of OctopusCity.com, its rights, duties or obligations under
this Agreement, in whole or in part, to any person or entity.
Any such attempted assignment or sub-license shall be void
and shall constitute a material breach of this Agreement.
This Agreement shall be binding upon the parties and their
successors and assigns.
(f) Survival. Sections 4(b)
(Aggregated Data), 6 (Fees and Payment), 9 (Confidentiality),
10 (No Warranty or Guarantee), 11 (Indemnity), 12 (Warranties),
13 (Limitation of Liability), 15(c) (Effect of Termination),
16 (Dispute Resolution Procedure) and 18 (General) shall survive
the termination of this Agreement.
(g) Notice. Any notice provided
pursuant to this Agreement shall be in writing and shall be
deemed given (i) if by hand delivery, upon receipt thereof;
(ii) if mailed, three (3) days after deposit in the U.S. mail,
postage paid, certified mail return receipt requested; (iii)
if mailed by Express Mail or Federal Express, one (1) day
after deposit therewith postage prepaid. All notices shall
be addressed to the parties at the respective addresses indicated
herein.
(h) No Waiver. The waiver
or failure of either party to exercise any right in any respect
provided for herein shall not be deemed a waiver of any further
right hereunder.
(i) Remedies. The rights
and remedies of OctopusCity.com set forth in this Agreement
are not exclusive and are in addition to any other rights
and remedies available to it in law or in equity.
(j) Headings. The headings
used in this Agreement are for reference only, do not form
a part of this Agreement and shall not affect the meaning
or interpretation of this Agreement.
(k) Counterparts. This Agreement
may be signed in two counterparts, each of which will be deemed
an original and which will together constitute one Agreement.
(l) English Language. English
is the authoritative text of this Agreement and all communications
and adjudications hereunder will be made and conducted in
English.
19. Service Ownership.
(a) You
acknowledge and agree that OctopusCity.com owns all legal
right, title and interest in and to the Services, including
any intellectual property rights which subsist in the Services
(whether those rights happen to be registered or not, and
wherever in the world those rights may exist).
20. Updates.
(a) The
Downloadable Software which you use may automatically download
and install updates from time to time from OctopusCity.com.
These updates are designed to improve, enhance and further
develop the Services and may take the form of bug fixes, enhanced
functions, new software modules and completely new versions.
You agree to receive such updates (and permit OctopusCity.com
to deliver these to you as part of your use of the Services.
21. Changes to Terms of Service:
(a)
OctopusCity.com may make changes to the Terms Of Service or
Privacy Policy from time to time. When such changes are made,
Subscribers will be notified through a posting on the home
page of OctopusCity.com. Please chack this site regularly
for updates to these documents.
OctopusCity.com, LLC.
330 Madison Ave, 6th Fl
New York, NY 10017
www.OctopusCity.com
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