Start A/B testing with AutoOptimize
Start A/B testing with AutoOptimize
Last Updated: August 11, 2020
AutoOptimize, Inc. (“AutoOptimize”, “we”, “us”, or “our”) provides certain services through our website located at AutoOptimize.ai, as well as such other websites or mobile applications that we own or operate (collectively, the "AutoOptimize Website", or “Our Website”). Users of Our Website include persons or entities that register through Our Website (each, a “Client” and collectively, “Clients”), who, in turn, own and operate their own websites or mobile applications (“Client Site(s)”), and who wish to utilize our code, software and services and reports (the “Analysis Service(s)”) to analyze and obtain information regarding how third party visitors to their Client Sites (“Client Site Visitor(s)”) are interacting with their Client Sites ("Visitor Information"). Users of Our Website may also include persons or entities who are otherwise visiting Our Website (“Other Users”).
TO USE OUR WEBSITE OR ANY OF THE SERVICES, YOU MUST BE AT LEAST 16 YEARS OLD. IF YOU ARE LESS THAN 16 YEARS OLD, YOU MAY NOT USE OUR WEBSITE OR SERVICES. IF YOU ARE UNDER THE AGE OF 18, YOU MAY ONLY USE THE OUR WEBSITE OR SERVICES UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN.
1. ACCOUNT REGISTRATION AND ACCESS
To register for the Analysis Service and create an account, you must complete the registration process by providing AutoOptimize with the information prompted by the registration form, including e-mail address (username), password, and billing information. You agree to provide us with complete and accurate information when you register for the Analysis Service, and to keep such information up to date.Our Website may allow you to login to your account through online accounts you may have with third party social networking sites such as Google. You agree and acknowledge that your use of such social network services is subject to such terms and conditions and / or privacy policies of such social network sites, and agree to abide by such requirements.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow an employee or agent to access the Analysis Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify AutoOptimize immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Analysis Service.
AutoOptimize may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2. LICENSE FROM AUTOOPTIMIZE
3.1 Subscription Terms
AutoOptimize offers a range of subscription plans to its Analysis Services, including, without limitation, a "Basic Plan," a "Standard Plan," a "Plus Plan," a "Pro Plan," and "Custom Plans." As an express condition of your use of and access to the Analysis Service, you agree to pay all fees applicable to your subscription plan (your "Plan"), any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Analysis Service. To view the specific details of your Plan, including pricing information and the commencement date of your next renewal period, visit the AutoOptimize Website, login at http://app.AutoOptimize.ai/login and from the sidebar navigation select “Account”, then “Your Profile”, after logging in.
The Analysis Service is priced based on usage, determined by the number of page views (each, a "Visit") of a registered web page for a Client Site for a specified usage period (each, a "Session"). With respect to each such Client Site, AutoOptimize will not, and will have no obligation to, collect, maintain, provide or analyze any further information relating to your Client Site, analyze such information in reports or provide information or reports once you (i) reach the maximum number of Visits for your Session, as specified in your Plan; or (ii) reach the maximum amount of usage time for your Session, as specified in your Plan, whichever occurs first.
3.2 Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Analysis Service at any time or require new fees or charges. Such changes will be effective immediately upon posting on Our Website; provided, however, that such fee changes will be effective only as to prospective Analysis Service orders (including renewals) accepted by AutoOptimize after the effective date of such change. Please be aware that any discounts applicable to previous subscriptions may not apply to renewed subscriptions.
3.3 Payment of Fees
Your Plan, which may start with a Free Trial Period (described below), will renew automatically and continue month-to-month or year-to-year (depending on your Plan) unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section 3.6 (Account Cancellation) and Section 12 (Term and Termination)). You must cancel your Plan before it renews in order to avoid fees due under the next billing cycle. To view the specific details of your Plan, including the commencement date of your next renewal period, visit the AutoOptimize Website, login at http://app.AutoOptimize.ai/login and from the sidebar navigation select “Account”, then “Your Profile”, after logging in. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Analysis Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
3.4 Credit Card Payments
All fees for your Plan will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and in your Plan and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify AutoOptimize if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
3.5 Payment Terms, Refunds, and Upgrade and Downgrade Terms
- The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly or annual basis, as specified in your Plan. With the exception of the Money Back Trial Period (described below), no refunds or credits will be provided for partial months of the Analysis Service, upgrades/downgrades, or for months unused with an open account.
- If you downgrade your Plan level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. AutoOptimize does not accept any liability for such loss.
- If you upgrade your Plan level, your credit card will immediately be charged a pro-rated amount reflecting the increased rate, and you will be charged the full amount of the new rate beginning with your next billing cycle.
- Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
3.6 Account Cancellation
- The only valid method for canceling your Plan is via the cancellation link provided on the “Account", “Your Profile” page, accessible after logging in to the AutoOptimize Website. Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation.
- If you cancel your Plan before the end of your current pre-paid period, you will not be charged again for your Plan beginning with the next billing cycle. If you cancel your Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Analysis Service and any data or information stored in your account (see Section 12 (Term and Termination) for additional details). If you cancel your Plan during a Free Trial Period or Money Back Trial Period, effective upon such cancellation, you will immediately lose all access to the Analysis Service and any data or information stored in your account.
3.7 Money Back Trial Period
- For subscription plans that do not involve a Free Trial Period (as described below), AutoOptimize may offer, during the registration process, a one-time money back period during which you can try out the Analysis Service for a period of 30 days and request a refund during the specified money back period if you are unsatisfied with the Analysis Service for any reason ("Money Back Trial Period").
- If you participate in a Money Back Trial Period, at the commencement of the Money Back Trial Period your credit card will be charged the full amount due under your Plan, as described above.
- You may cancel your Plan at any time during the Money Back Trial Period by following the steps described in Section 3.6 ("Account Cancellation"), upon which you will automatically receive a refund of all fees charged to your credit card. Upon cancelling your Plan, you will immediately lose all access to the Analysis Service and any data or information stored within your account (see Section 12 (Term and Termination) for additional details).
- If you fail to cancel your Plan within the Money Back Trial Period, no refund will be available to you and you will thereafter be billed on a month-to-month or year-to-year basis (depending on your Plan) unless and until you cancel your Plan or we terminate it (see Section 3.6 (Account Cancellation) and Section 12 (Term and Termination)). You will not receive a notice from AutoOptimize that your Money Back Trial Period is about to end or has ended.
- AutoOptimize reserves the right to modify, cancel and/or limit the Money Back Trial Period offer at any time.
3.8 Free Trial Period
- AutoOptimize may offer, during the registration process, a one-time free trial period during which you can try out the Analysis Service for 30 days from the date you register to use the Analysis Service without pre-paying in advance ("Free Trial Period"). To view the specific details regarding your Free Trial Period, if any, visit the AutoOptimize Website, login at http://app.AutoOptimize.ai/login and from the sidebar navigation select “Account”, then “Your Profile”, after logging in.
- If you participate in a Free Trial Period, you must cancel the Analysis Service by the end of the Free Trial Period to avoid incurring any charges. If you do not cancel the Analysis Service before the Free Trial Period expires, you authorize us to charge your credit card the full cost of your Plan, as described to you during the registration process. Your Plan will then automatically renew and continue month-to-month or year-to-year (depending on your Plan), unless and until you cancel your Plan or we terminate it (see Section 3.6 (Account Cancellation) and Section 12 (Term and Termination)). You will not receive a notice from AutoOptimize that your Free Trial Period is about to end or has ended.
- In some instances, the available balance or credit limit on the credit card provided during the registration process may be reduced to reflect the pre-authorization of certain de minimis charges related to your Plan; however, no charges will be made against your credit card unless you do not cancel prior to the end of your Free Trial Period.
- You may cancel your Plan at any time during the Free Trial Period by following the steps described in Section 3.6 (Account Cancellation). Upon cancelling your account, you will immediately lose all access to the Analysis Service and any data or information stored within your account (see Section 12 (Term and Termination) for additional details).
- AutoOptimize reserves the right to modify, cancel and/or limit the Free Trial Period offer at any time.
4. LICENSES TO AUTOOPTIMIZE
4.1 License to Client Data
The terms of this Section 4.1 (License to Client Data) apply to you if you are a Client:
As between the parties, you shall retain ownership of any information, data and statistics that AutoOptimize obtains from your Client Site, such as raw data and log files generated by the Analysis Service.
You hereby grant to AutoOptimize a royalty-free, non-exclusive, irrevocable, right and license to access your Client Site(s) and to collect any information concerning Client Site Visitors' actions or activities on your Client Site(s), any information sent to you by Client Site Visitors' web browsers concerning such Client Site Visitors' activities prior to visiting your Client Site(s) (e.g., URL information and HTTP header information), and/or any data or other information you provide to AutoOptimize or that is otherwise accessible from your Client Sites (collectively "Client Data") for (i) providing you the Analysis Service, including, without limitation, any reports and other functions related to the Analysis Service; (ii) analyzing and improving the Analysis Services generally; (iii) review, compile, or analyze aggregate data derived from the Analysis Services to compile statistics, metrics, insights, general trend data about the Analysis Service for, among other things, marketing and promotional purposes.
In addition, you grant AutoOptimize the right to access Client Data for the purposes of (A) providing you with reports and other functions related to the Services; (B) analyzing and improving the Services; and (C) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, marketing and promotional purposes.
4.2 License to Material Which You Post
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material ("Material") to Our Website, you hereby grant AutoOptimize an irrevocable, perpetual, non-exclusive, royalty-free, sublicensable worldwide license to reproduce, adapt, distribute, perform or publicly display all or any portion of the Material on our Services. You further represent and warrant that you own all rights to such Material and that this license does not infringe the rights of any third party or violate any applicable law or regulation.
As used in this Section 5, "Personally Identifiable Information" refers to information that can be used to personally identify an individual, such as name, address and phone number, and include “personal data” as defined under the General Data Protection Regulation (GDPR) .
5.1 Cookies Used by the AutoOptimize Script for Client Site Visitors
5.2 Your Obligations With Respect to Client Site Visitors and Other Third Parties
With respect to Client Site Visitors, you will not (i) use the Analysis Service to collect Personally Identifiable Information; (ii) use the Analysis Service to associate any data gathered from your Client Site with any Personally Identifiable Information from any source; or (iii) pass on or transmit any Personally Identifiable Information of any Client Site Visitors to AutoOptimize and/or the Analysis Service for any purpose, whether through Materials that you submit or upload to Our Website, or otherwise.
You agree and acknowledge that AutoOptimize does not knowingly or willfully collect Personally Identifiable Information from Client Site Visitors. If and to the extent that your Client Site collects Personally Identifiable Information or other content from Client Site Visitors, such as, by way of example, through a form submitted by a Client Site Visitor to the Client Site or by submission of multimedia content by Client Site Visitors to the Client Site, you will notify AutoOptimize in advance of any such collections (“Visitor Submitted Content”).
Your AutoOptimize account is protected by a username and password, and should be accessed only by you or your authorized employees or agents accessing the Services on your behalf. For maximum protection, you should protect against unauthorized access to your username and password and remember to log off when using any shared computer or device. AutoOptimize has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited access, firewalls and SSL encryption to protect transmission of data. However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to AutoOptimize, information we compile on your behalf, and/or information that we collect about you. AutoOptimize cannot guarantee the security of such information and is not responsible for unauthorized access to Client accounts. We disclaim any liability for any theft or loss of, unauthorized access or damage to, or interception of any data or communications of Clients, Client Site Visitors, or Other Users.
5.4 AutoOptimize Limits Access to Your Information
5.5 Aggregate Reports
5.6 Analysis Services Not Available for Websites Directed To Children
You may not use the Analysis Services in connection with any website labeled or described as a "Kid's" or "Children's" website or any website directed at individuals under the age of 16. Each Client hereby represents and warrants that all of its Client Site Visitors are age 16 or over. If you wish to use a separate version of our service in connection with websites that are directed at individuals under age 16, please reach us at privacy@AutoOptimize.ai.
6. PROPRIETARY RIGHTS; RESTRICTIONS ON USE
6.1 Content on the AutoOptimize Website
Any opinions expressed by the contributors, authors and moderators who post content to the AutoOptimize Website are the personal opinions of the authors, not of AutoOptimize, whether or not the authors are employees or contractors of AutoOptimize. The AutoOptimize Website and all materials published and/or distributed on or through the AutoOptimize Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by AutoOptimize or any other party. You are solely responsible for your use of and access to any galleries, forums, chat rooms, blogs, message boards, online hosting or storage services, or other areas or Services on Our Website in which you or other users may create, post or store Materials (the “Interactive Areas”) and you will use the Interactive Areas at your own risk. You understand that when using the Our Website, you may be exposed to Material provided by other users or content provided by other third parties, and you agree that we are not responsible for the accuracy, safety, appropriateness or intellectual property rights in or related to such Materials or content. Users can be held liable for any illegal or prohibited Materials they provide to Our Website, including among other things, infringing, defamatory or offensive materials. If you discover this kind of material on the Site, please notify us at privacy@AutoOptimize.ai. We will investigate your claim and may then take the actions deemed appropriate.
6.2 Disclaimers of Third Party Content.
6.3 Copyright Complaints
We respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any Materials infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may file a notification of such infringement with our Designated Agent as set forth below: Designated Agent: AutoOptimize, Inc.
Address of Designated Agent:
16220 E. Ridgeview Lane
La Mirada, CA 90638
Email Address of Designated Agent: privacy@AutoOptimize.ai
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s address in our records.
For clarity, only DMCA notices should go to our Designated Agent named above; any other feedback, comments, requests for technical support, and other communications should be directed to AutoOptimize customer service at suppport@AutoOptimize.ai . You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
6.4 Your Feedback.
You acknowledge and agree that any feedback, ideas, suggestions, or proposals that you provide (“Feedback”) in the form of email or other submissions to us (including, but not limited to, any status or other updates) or otherwise post on or provide via Our Website will, to the maximum extent permissible under applicable laws, automatically become our sole property, and you hereby assign to us, exclusively and throughout the world, all rights, title, and interests in such Feedback, all intellectual property rights embodied therein, and otherwise, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback. You are not entitled to any acknowledgment, compensation or reimbursement in connection with such Feedback or grant of rights to same. By providing such Feedback, you acknowledge and agree that: (a) your Feedback do not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we will be entitled to use or disclose (or choose not to use or disclose) any Feedback for any purpose, in any way, in any media worldwide; (d) we may have something similar to the Feedback already under consideration or in development; (e) your Feedback automatically become our property without our obligation to you; and (f) we may, but are not obligated to, review or monitor areas on Our Website where users may transmit or post Feedback.
Except for the limited licenses expressly granted herein, AutoOptimize expressly reserves all right, title and interest in and to the AutoOptimize Script, content on the AutoOptimize Website, and all processing, analytics, and other software and technology used by AutoOptimize in the analysis of your Client Site and/or the provision of the Analysis Service ("AutoOptimize Technology"), including, without limitation, any derivatives, improvements, enhancements or extensions of the AutoOptimize Technology conceived, reduced to practice or otherwise developed on or on behalf of AutoOptimize, all of which are valuable assets of AutoOptimize, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
6.6 Restrictions on Use
You shall not (i) use, or allow the use of, the Services or any AutoOptimize Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by AutoOptimize or inconsistent with AutoOptimize's standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Services or AutoOptimize Technology, or attempt to access data of any other customer of AutoOptimize; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by AutoOptimize; (v) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Services; (vi) use the Services, or any AutoOptimize Technology, for academic research or research unrelated to your Visitors or the Client Site web page(s) registered for use with the Services, contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program; (viii) post or transmit any message, data, image or program that would violate any property rights of others; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents;(x) deep-link to Our Website for any purpose, unless specifically authorized by us in writing to do so; or (xi) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
You agree to indemnify, hold harmless and (if requested by AutoOptimize) defend AutoOptimize, our affiliates, licensors, and their respective independent contractors, service providers, consultants, directors, officers, employees and agents, and applicable third parties (such as licensors, partners and advertisers (collectively, the “Indemnified Parties”) harmless at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, including, by way of example, any breach of applicable laws caused by your use of the Services, (iii) your unauthorized use of the AutoOptimize Script or other Services; (iv) any violation of any rights of third parties caused by your acts or omissions. In such instances, AutoOptimize will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to AutoOptimize within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. AutoOptimize reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
8.1 Your Representations and Warranties.
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. AutoOptimize and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites ("Third Party Websites"). Access to Third Party Websites is at your own risk and AutoOptimize is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites. The Third Party Websites are not under the control of AutoOptimize and as such, AutoOptimize is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Website. AutoOptimize provides these links merely as a convenience and the inclusion of such links does not imply an endorsement or recommendation.
AutoOptimize does not represent or warrant that (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services, including any reports, will be correct, accurate, timely, or otherwise reliable. You specifically agree that AutoOptimize shall not be responsible for unauthorized access to or alteration of your data.
THE SERVICES, THE AUTOOPTIMIZE SCRIPT, THE AUTOOPTIMIZE TECHNOLOGY, AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY AUTOOPTIMIZE EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE AUTOOPTIMIZE SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. AUTOOPTIMIZE DOES NOT WARRANT THAT THE SERVICES, THE AUTOOPTIMIZE SCRIPT, THE AUTOOPTIMIZE TECHNOLOGY, OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
9. SERVICES FAILURES
AutoOptimize does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of your equipment, systems or local access services; (iii) for previously scheduled maintenance; or (iv) relating to events beyond AutoOptimize's control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where AutoOptimize or your servers are located or co-located.
10. LIMITATIONS OF LIABILITY
NEITHER AUTOOPTIMIZE, NOR OUR AFFILIATES, LICENSORS, AND THEIR RESPECTIVE INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, CONSULTANTS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL BE LIABLE TO YOU OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL
YOU AGREE THAT THE CUMULATIVE LIABILITY OF AUTOOPTIMIZE, ITS AFFILIATES, LICENSORS, AND THEIR RESPECTIVE INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, CONSULTANTS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS TO YOU OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO AUTOOPTIMIZE, IF ANY, FOR USE OF THE SERVICES DURING THE MONTH PRECEDING THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY.
The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
11. U.S. GOVERNMENT RIGHTS
If the use of the Analysis Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. Ã‚ § 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. § 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in AutoOptimize Technology, including its rights to use, modify, reproduce, release, perform, display or disclose AutoOptimize Technology, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
12. TERM AND TERMINATION
12.1 In General
AutoOptimize may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
12.2 Termination of Analysis Services
Either party may terminate the Analysis Services at any time and for any reason. To terminate your use of the Analysis Service, please follow the steps described in Section 3.6 (Account Cancellation). Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation.
Upon any termination of the Analysis Services (i) AutoOptimize will cease providing the Analysis Service; (ii) you will delete all copies of the AutoOptimize Script from your web page(s); (iii) any outstanding balance payable by you to AutoOptimize will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through AutoOptimize.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the AutoOptimize Script from such web page. You understand and acknowledge that, unless and until the AutoOptimize Script is deleted from a web page, the AutoOptimize Script may continue to track information on such web page on an automated basis.
13. MODIFICATIONS TO THIS AGREEMENT AND OTHER POLICIES
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (i) by obtaining our written consent in a notarized agreement signed by an officer of AutoOptimize; or (ii) as set forth below in the immediately following paragraph.
You agree that AutoOptimize may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by posting a notice on the AutoOptimize Website for 30 days following any revisions or modifications to this Agreement and/or by posting a notice on the AutoOptimize Website the first time that you visit the AutoOptimize Website following such revisions or modifications. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after the passage of 30 days from the time the revised terms and conditions are first posted on the AutoOptimize Website. We assume no responsibility for your failure to actually receive notice. You are responsible for regularly reviewing the AutoOptimize Website for revisions to this Agreement.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
15. ARBITRATION; DISPUTE RESOLUTION
If you are an individual based in the EEA and have a dispute regarding our processing of personal data, you may, under certain conditions, invoke binding arbitration under the Privacy Shield. Please see the Privacy Shield website for further information regarding such binding arbitration at https://www.privacyshield.gov/Program-Overview.
EXCEPT AS PROVIDED ABOVE OR WHERE OTHERWISE PROHIBITED BY LAW, YOU AND AUTOOPTIMIZE UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND AUTOOPTIMIZE, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES (INCLUDING DISPUTES AGAINST ANY AGENT, EMPLOYEE, SUBSIDIARY, AFFILIATE, PREDECESSOR IN INTEREST, SUCCESSOR, OR ASSIGN OF THE OTHER) RELATING TO THE SITE, THE INFORMATION AND MATERIALS PUBLISHED BY AUTOOPTIMIZE ON OR THROUGH THE SITE, ANY TRANSACTION OR RELATIONSHIP BETWEEN US RESULTING FROM YOUR USE OF THE SITE, COMMUNICATIONS BETWEEN US, AND YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A CALIFORNIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY, CONSTRUED, AND ENFORCED, BOTH PROCEDURALLY AND SUBSTANTIVELY, BY THE FEDERAL ARBITRATION ACT 9 U.S.C. § 1-9 ("FAA"), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIS SECTION 15 (ARBITRATION; DISPUTE RESOLUTION) SHALL SURVIVE TERMINATION OF THE SERVICES OR OF THESE TERMS AND CONDITIONS TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS.
The following procedures shall apply:
- i) Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein.
- ii) In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted by the American Arbitration Association ("AAA"), and shall be conducted using the then current Commercial Arbitration Rules of the AAA (except as varied by this agreement). The arbitration shall take place in Los Angeles County, California, but may proceed telephonically in the event the total amount of the claim does not exceed $10,000 U.S. dollars (if the claimant so chooses).
iii) Payment of all filing, administration, and arbitrator fees will be governed by AAA's rules.
- iv) If for any reason the AAA is unavailable, the parties shall select JAMS.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties' agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST AUTOOPTIMIZE, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITE OR SERVICES.
16. MISCELLANEOUS; APPLICABLE LAW AND VENUE
AutoOptimize shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
16.3 Choice of Law and Forum
With the exception that the enforceability of Section 15 (Arbitration; Dispute Resolution), which is governed both procedurally and substantively by the FAA, and except for such provisions regarding Personally Identifiable information under this Agreement or the Policy as may be subject to the Privacy Shield or otherwise to the GDPR; and/or the Federal Data Protection Act of 19 June 1992 (Switzerland), this Agreement shall be governed by and construed under the laws of the state of California, U.S.A., without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations shall prevail and govern. Except to the extent that arbitration is required in accordance with Section 15 (Arbitration; Dispute Resolution) above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Los Angeles County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The AutoOptimize Script and AutoOptimize Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
When you visit the Website or send emails to us, you communicate with us electronically and consent to receive communications from us electronically. We may communicate with you by: (a) email to your email address indicated in your communications with us, (b) posting general notices on Our Website, or (c) posting messages that are displayed to you when you log in to or access Our Website. AutoOptimize may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your AutoOptimize account or by written communication delivered by first class U.S. mail to your address on record. You agree that all agreements, notices, disclosures and other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing.
Any notices to AutoOptimize must be sent to:
AutoOptimize, Inc. 6725 Millcreek Dr #1, Mississauga, ON L5N 5V3 Canada
via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default.
16.5 Transfer of Rights
You may not assign or otherwise transfer any of your rights hereunder without AutoOptimize's prior written consent, and any such attempt is void. The relationship between AutoOptimize and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control of affect the meaning or construction of any provision of this Agreement.
16.7 Entire Agreement
If any provision of these Terms and Conditions is found to be void or unenforceable, then the remainder will have full force and effect, and the invalid provision will be partially enforced to the maximum extent permitted by law to effectuate the purpose of these Terms and Conditions
17. INTERNATIONAL USE
Recognizing the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the Services. Further, use of the Services for Client Sites in certain jurisdictions outside of the U.S. may be conditioned upon your entry into a separate addendum governing the use of the Services for Client Sites in those jurisdictions (each, a “Foreign Addendum” and collectively, the Foreign Addenda”). You agree and acknowledge that AutoOptimize may condition your use of any of the Services or any Client Sites outside of the United States on entry into a Foreign Addendum which may be provided separately by AutoOptimize.