Terms & Conditions
Last Revised: June 14th, 2019
Please read the following terms and conditions carefully. If you have any questions, please do not hesitate to contact us.
By using OptimalWork LLC's products and services, you are agreeing to all the terms and conditions below.
OptimalWork LLC and its affiliates and subsidiaries (collectively referred to throughout as "OptimalWork" "we" or "us"), offer a variety of products and services, including the Optimal-branded websites, applications, mobile applications, podcasts, content and other technology products and services; including any products and services provided in collaboration with our partners (collectively, the "Services").
These Terms and Conditions of Use ("Terms") govern your access to and use of the Services. Please read the Terms carefully before using the Services, as they are a legally binding contract between you and OptimalWork.
Please feel free to contact us by email at [email protected] if you have any questions or suggestions.
USING OUR SERVICES
1. Use of the Services and Your Account
(a) You must be at least thirteen (13) years of age to use the Services. No individual under this age limit may use the Services, provide any Personal Data to OptimalWork, or otherwise submit Personal Data through the Services.
(b) You may need to register for a OptimalWork account in order to access or use certain Services. Your account may automatically provide you access and means to use new Services that we create.
When you create an account for any of the Services, you must provide us with accurate and complete information, and keep that information up to date. Otherwise, some of the Services may not operate correctly, and we may not be able to contact you with important notices.
Services may include:
- The Inventory, an original 24-item questionnaire designed by us to help you understand how well you're working and living.
- The Work Engagement Survey, a standard survey used in the social sciences to establish how engaged with your work you are.
- The Golden Hour tool, which takes you through several steps to help you improve your focus in a given time of work.
- Other services as developed and added to optimalwork.com.
If you create an account, you are responsible for maintaining the confidentiality of any User-Generated Content (defined below) and all actions that take place while using your account, and you must notify our Support Group right away of any actual or suspected loss, theft, or unauthorized use of your account or account password. We are not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.
OptimalWork may offer community forums and the ability to share user data with other individuals, groups, and groups (collectively referred to as Groups) so that users can share information and support one another. Since these forums and Groups will be open to other users and, in certain instances, to the public, they should not be considered private.
Any information you share in any online community area including a chat room, Group, or online discussion is by design open to the public and is not private. You should think carefully before posting any personal or sensitive information in any community forum, Group, or chat room. What you post can be seen, disclosed to or collected by third parties and may be used by others in ways we cannot control or predict, including to contact you for unauthorized purposes. As with any public forum on any site, the information you post may also show up in third-party search engines.
If you are a resident of the European Union: You have the right to delete your account with us by contacting our Support Group. If you choose to permanently delete your account, the non-public Personal Data that we have associated with your account will also be deleted.
(c) Service Updates, Changes and Limitations
The Services change frequently, and their form and functionality may change without prior notice to you. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.
We may also from time to time and without prior notice to you, develop and provide updates for certain Services. You agree that the Terms (and any additional modifications of the same) will apply to any and all updates to the Services. We have no obligation to provide any updates or to continue to provide or enable any particular features or functionality of any of the Services.
(d) Service Monitoring and Suspension
We reserve the right, but have no obligation, to monitor any accounts and/or activities conducted through or in any way related to the Services.
We care about the security of our users. While we work hard to protect the security of your Personal Data, User-Generated Content, and account, no method of Internet transmission is 100% secure. Consequently, OptimalWork cannot guarantee, ensure or warrant the security of your Personal Data, User-Generated Content, and account. To the maximum extent permitted by applicable law, OptimalWork is not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from any unauthorized access to your Personal Data, User-Generated Content, or account, even if caused in whole or part by the action, inaction or negligence of OptimalWork or by the action, inaction or negligence of others.
(f) Consent to Receive Communications
After signing up for an account, you may receive periodic email communications regarding the operations of the Services. You cannot opt out of receiving these communications while you continue to use the Services.
You may also receive periodic promotions and other offers or materials that we believe might be of interest to you.
As part of the Services, to the extent you have provided your consent, you may receive communications through the Services, including messages that OptimalWork sends you (for example, via text message) regarding information we think may be of interest to you.
The communications between you and OptimalWork via the Services use electronic means, whether you use the Services or send OptimalWork an email or text message, or whether OptimalWork posts notices on the Services or communicates with you via email or text message. You consent to receive communications from OptimalWork in an electronic form and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that OptimalWork provides to you electronically satisfies any legal requirement that such communications would satisfy if it were in writing.
USE OF CONTENT
3. Ownership and Use of Content
For purposes of these Terms, (i) the term "Content" means any creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, text, ideas, communications, replies, "likes," comments, selections, tool interactions, information, data, software, scripts, executable files, graphics, geo-data, device generated data, sensor generated data, biometrics, annotations, interactive features, designs, copyrights, trademarks, patents, sounds, applications and any intellectual property contained therein, any of which may be generated, provided, or otherwise made accessible on or through the Services; (ii) the term "User-Generated Content" means any Content that you or another OptimalWork user submits, transfers, or otherwise provides to or through the use of the Services. Content includes, without limitation, all User-Generated Content; and (iii) the term "OptimalWork Content" means all Content that is not User-Generated Content.
All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and OptimalWork Content belong to OptimalWork and/or its partners or applicable third parties. Each user retains ownership, responsibility for, and/or other applicable rights in the User-Generated Content that they create, and OptimalWork and/or its partners or third parties retain ownership, responsibility for and/or other applicable rights in all OptimalWork Content. Except as expressly provided in the Terms, nothing in the Terms grants you a right or license to use any OptimalWork Content, including any content owned or controlled by any of our partners or other third parties. You agree that you will not infringe on the intellectual property rights of others, and represent and warrant that you have all of the necessary rights to grant OptimalWork a license (described further in Section 3(d) below) for all User-Generated Content you submit in connection with the Services.
(c) Our License to You
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and the OptimalWork Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and OptimalWork Content, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the OptimalWork Content or Services to anyone else. This license is subject to the Terms and the following:
- OptimalWork Content. Except as expressly permitted by applicable law or authorized by OptimalWork, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services' software, or any OptimalWork Content offered as part of the Services (other than User-Generated Content), in whole or in part. Please do not download, copy, or save OptimalWork Content, except (i) as expressly permitted by the functionality of certain Services as provided for in the specific guidelines and/or additional terms applicable to those Services, or (ii) solely for personal use or your records.
- Commercial Usage of the Services. The Services are intended only for your personal, non-commercial use. You may not use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons, such as advertising sales, or otherwise undertake any endeavor aimed at deriving revenue.
- Linking to the Services. You may not link to the Services on your website or application without first obtaining the written approval of OptimalWork. OptimalWork reserves the right to revoke any consent to the link at any time and in its sole discretion, and upon our notification to you of such revocation of consent, you agree to promptly remove the relevant link from your website or application. OptimalWork will typically approve links to the Services so long as: (i) the OptimalWork website opens in a new browser window which displays the full version of a page of the OptimalWork website (e.g., not merely one of its frames, and not an "in-line" link to a particular image or object on this site), (ii) the link does not state or imply any sponsorship of your website or service by OptimalWork or by the Services; and (iii) the OptimalWork website is not display framed within or obfuscated by other content. You may not use on your site any OptimalWork Trademarks (defined below) or any OptimalWork Content, without our express written consent.
- Confusion or Impersonation. Do not impersonate any person or entity, and/or falsely claim an affiliation with any person or entity.
- Disruptions, Exploits, or Resource Abuse. Do not interfere with or damage operation of the Services, including through unauthorized use, disruption, automated attacks, exploitation, or abuse of our resources.
Automated Querying. Do not send automated queries of any sort to the
systems and networks we use to provide the Services without our express
written permission. "Sending automated queries" includes but is not limited
- Using any software that sends automated queries to the systems and networks we use to provide the Services that seek data;
- "Meta-searching" the Services and the systems and networks we use to provide the Services; and
- Performing "offline" searches relative to the Services.
- Unlawful Uses. You may only use the OptimalWork Content and Services for legally permitted purposes. You may not use the Services or any OptimalWork Content or other information displayed on or made available by the Services to stalk, harass, abuse, defame, threaten or defraud others.
(d) Your License to Us
When you provide User-Generated Content to OptimalWork through the Services, you grant OptimalWork a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), commercialize, create derivative works of, and otherwise exploit such User-Generated Content in connection with any and all Services. You acknowledge and agree that: (a) we have the right to arrange the posting of User-Generated Content in any way we desire; (b) OptimalWork has no obligation to provide you with any credit when using your User-Generated Content, but if OptimalWork chooses to provide you with credit, the size and placement of the credit is at our sole discretion; and (c) you are not entitled to any compensation or other payment from us in connection with the use of your User-Generated Content.
In order to provide the best possible Services, we plan to conduct scientific studies with reputable institutions such as Harvard University using the User-Generated Content ("Research"). Any User-Generated Content used for Research will be anonymized, that is, have any personally identifiable information (such as unique data identifiers, email address, location) removed. The license you provide to OptimalWork above includes Research, and you acknowledge and agree that OptimalWork can use your User-Generated Content for Research.
The rights you grant in this license are for the purposes of allowing OptimalWork to operate the Services in accordance with their functionality, improve the Services, develop new Services, and to allow other users to use the Services in accordance with their intended function. Notwithstanding the above, we will not make use of any of your User-Generated Content in a manner that is inconsistent with the privacy settings you establish within the Services.We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content that we believe violates these Terms and/or our policies.
(e) Content Retention
Following termination of your account, or if you remove any User-Generated Content from the Services, we may retain your User-Generated Content for a commercially reasonable period of time for backup, archival, or audit purposes, or as otherwise required or permitted by law. Furthermore, OptimalWork may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of your User-Generated Content that otherwise has been stored or shared through OptimalWork. Accordingly, note that the above license to your User-Generated Content continues even if you stop using the Services.
(f) Your Feedback
If you choose to submit comments, ideas or feedback, you agree that we are free to use the ideas you submit without any restriction or compensation to you. By accepting your submission, OptimalWork does not waive any rights to use similar or related feedback previously known to OptimalWork, developed by our employees or obtained from sources other than you. You certify and represent that the information or feedback you submit to us through the Services is not confidential or proprietary information.
OptimalWork owns or licenses all OptimalWork trademarks, service marks, branding, logos, and other similar assets (the "OptimalWork Trademarks"). Do not copy, imitate, modify, display or otherwise use the OptimalWork Trademarks (in whole or in part) for purposes other than personal use, or in connection with any web or mobile product or service that is not authorized by OptimalWork, without our prior written approval.
(h) Accuracy and Reliance on Content
We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.
In addition, User-Generated Content is not produced by OptimalWork, and should not necessarily be relied on. User-Generated Content available in connection with the Services, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User-Generated Content originated. We do not endorse any opinions or recommendations contained in User-Generated Content. All information is provided "as is" without any representation, warranty or condition as to its accuracy or reliability.
4. Copyright/ DMCA
If you believe that User-Generated Content or OptimalWork Content infringes copyright under U.S. or other national law, please notify our Copyright Agent immediately using the contact information provided herein. It is our policy to investigate any allegations of copyright infringement brought to our attention. Please provide us with the following information in your notice of a suspected copyright violation:
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
- Contact information for the notifying party (the "Notifying Party"), including name, address, telephone number, and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Your notice must be emailed to the address: [email protected]
You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the individual who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or www.chillingeffects.org/copyright for more information about how to prepare or respond to a DMCA notice.
SUBSCRIPTIONS AND FEES
5. Paid Services
If you choose to subscribe to any of our enhanced, paid Services, these are the payment and billing terms that apply. Paid Services and billing will auto-renew unless you cancel. You may cancel at any time.
(a) Payment Terms
We offer certain premium versions of the Services (the "Premium Services") for a fee. By signing up for and using any of the Premium Services, you agree to our Terms, and any additional terms and conditions that are provided here. You also agree to waive your 14-day right of withdrawal to the maximum extent permitted by applicable law, so that you are able to immediately access all of the Premium Services.
The Premium Services provide you access to certain enhanced products, services, features and functionality. By signing up for and using the Premium Services, including signing up for Free Trials of the Premium Services, you agree to pay any fees or other incurred charges that apply to the Premium Services (such as subscription fees).
When you sign up for the Premium Services, you must designate and provide information about your preferred payment method ("Payment Method"). This information must be complete and accurate, and you are responsible for keeping it up to date. You expressly authorize us to collect from your Payment Method the appropriate fees charged for the Premium Services and for any other purchases you elect to make via the Services.
You can choose your preferred way to pay for the Premium Services from the options available at the time of purchase. Monthly billing, annual billing, and one time billing may be offered. All fees due for the Premium Services are payable in advance, and will be billed automatically to the Payment Method at the start of the monthly, annual, or one time Premium Service period, as applicable. Unless otherwise stated, Premium Services billed monthly and annually will auto-renew until you elect to cancel your access to Premium Services. All purchases of Premium Services are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service. Lifetime subscriptions provide users with Premium Services for a one time fee. If optimalwork.com ever ceases operations, Lifetime subscriptions will expire and refunds will not be given.
(b) Termination or Cancellation of Premium Services
If you do not pay the fees or charges due for your use of the Premium Services, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Premium Services (and may do so without notice).
You can cancel the Premium Services at any time. Once you have canceled your Premium Service and received confirmation, no other changes can be made to your account. The cancellation of a Premium Service will go into effect at the end of your current billing cycle, and you will have the same level of access to the Premium Service through the remainder of such billing cycle.
There are no refunds for termination or cancellation of your Premium Service. If you no longer wish to subscribe to a Premium Service, it is your responsibility to cancel your Premium Service, regardless of whether or not you actively use the Premium Service.
(c) Third-Party Payor Arrangements
If your OptimalWork account is sponsored by your employer or another entity (such as an insurance provider or benefits company) (a "Payor"), your use of the Premium Services may be subject to a discount. We reserve the right to change our pricing for certain or all Premium Services in the future. If your relationship with your Payor terminates or if our arrangement with your Payor terminates or expires, you must pay all applicable fees in accordance with OptimalWork's then-current pricing in order to continue using the Services.
If your OptimalWork Account is sponsored by your employer or another entity, you agree that OptimalWork may share high-level site usage data regarding your engagement with the OptimalWork website with such Payor.
(d) Fee Changes
To the maximum extent permitted by applicable laws, we may change our prices for Premium Services at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Premium Service and/or by sending you an email notification. If you do not wish to pay the new prices, you can cancel the applicable Premium Service prior to the change going into effect.
SERVICES ARE NOT MEDICAL ADVICE
6. Safety, Not Medical Advice, HIPAA
We provide the Services for information purposes only, and can't be held liable if you or anyone else gets injured or something goes wrong.
(a) Safety First
You should consult with your healthcare provider(s) and consider the associated risks before using the Services in connection with any wellness, well-being or mental health program or service. Everyone's condition and abilities are different, and participating in such programs or services is at your own risk. If you choose to participate in these programs or services, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such programs and services.
You understand and agree that we will not carry out and are not responsible for any monitoring, response, supervision or conduct of any programs or services related to or accessed or discovered via the Services.
Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through the Services (e.g., a Third-Party Activity), even if caused in whole or part by the action, inaction or negligence of OptimalWork or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also expressly agree that we do not assume responsibility for any Third-Party Activity that utilizes or is promoted by or accessed via the Services.
(b) Not Medical Advice
The Services and Content are for informational purposes only. Neither the Services nor the Content should be considered or used as a substitute for professional medical advice, counseling, diagnosis or treatment. Neither the Services nor the Content constitute the practice of any medical, nursing, mental health or other professional health care advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition, diagnosis and treatment. Never disregard professional medical advice or delay in seeking it because of the Content, any OptimalWork Content or something you have read on OptimalWork' s website or via the Services.
OptimalWork's coaches and other representatives are not licensed health care professionals and are not authorized to provide services requiring professional licensure such as psychotherapy. Your interactions or communications with any OptimalWork coach, representative, personnel or agent are not intended to be a substitute for professional health care advice, diagnosis or treatment. OptimalWork does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned on or via the Services or contained in the Content. Reliance on any information provided by OptimalWork, on or via the Services or any Content is solely at your own risk. We aim to provide useful general information for our users, not professional medical advice. The Services are not medical or counseling advice, and the data and information provided by them is not intended to be utilized for medical purposes and is not intended to diagnose, treat, cure or prevent any condition, disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree that we are not providing counseling services or medical advice via the Services. All Content provided through the Services, whether provided by us or by third parties (even if they are or are claiming to be a medical professional) is not intended to be and should not be used in place of (a) the advice of your physician or other professionals, or (b) a visit, call or consultation with your physician or other medical professionals. We are not responsible for any health problems that may result from any wellness programs that you may use or learn about through the Services. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.
Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between OptimalWork and you.
Reliance on any information provided by or through, the Content, the OptimalWork Content, the Services, OptimalWork or any of its representatives, other users of the Services or any of OptimalWork's affiliates is solely at your own risk.
You understand and agree that User-Generated Content is not protected health information, or ("PHI"), as that term is defined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). As such, OptimalWork is not obligated to protect the privacy or confidentiality of the User-Generated Content in accordance with HIPAA.
You further understand that, while you may elect to share your User-Generated Content with third-parties, including your physician or other health care professional, OptimalWork does not provide any services on behalf of those individuals which involve the use of PHI. Accordingly, OptimalWork will not be deemed a Business Associate to your physician or other health care professional, as that term is defined by HIPAA. You and your physician or other health care professional are solely responsible for ensuring that communications between you and your physician takes place in a HIPAA-compliant manner.
If you are a health care professional, you agree, in addition to all of the other Terms, that OptimalWork is not providing any services on your behalf that involve the use of PHI, and that OptimalWork will not be deemed your Business Associate for any purpose. You acknowledge and agree that any data provided through or via the Services may not be completely accurate and that you will not rely on any such data for the purposes of medical evaluation, diagnosis or treatment.
CHANGES AND REVISIONS
7. Modifications to the Terms
OptimalWork reserves the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing advance notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the OptimalWork websites or in our applications). Modifications will not apply retroactively unless required by law.
We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your use of the Services following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.
WARRANTIES, LIMITATIONS ON LIABILITIES, & INDEMNIFICATION
8. No Warranties
EXCEPT WHERE PROHIBITED BY LAW, OPTIMALWORK EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the users providing that Content. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
9. Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall OptimalWork, its subsidiaries or any partners be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; (c) damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or content of any third party using the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any Third-Party Content accessed via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not OptimalWork has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of OptimalWork, for any claim under these Terms, including for any implied warranties, is limited to the greater of one thousand dollars (US$1,000.00) or the amount you paid us to use the applicable Service(s) in the past twelve months.
In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of any user's Personal Data and/or Location Data, (c) any other interactions with us or any other users using the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.
To the extent permitted by applicable law, you acknowledge and agree that we offer the Services and set the Services' prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says "a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
If you are a resident of the United States or any country other than France or Germany: To the maximum extent permitted by applicable law, you agree to indemnify and hold OptimalWork, its subsidiaries, suppliers and other partners harmless from any claim or demand, including reasonable accounting and attorneys' fees, made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, (c) your activities in connection with the Services, (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any user's Personal Data and Location Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another user in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
If you are a resident of France or Germany: Notwithstanding the previous paragraph, you agree to indemnify and hold OptimalWork, its subsidiaries, suppliers and other partners harmless from any claim or demand as result of your negligent or intentional behavior, including reasonable accounting and attorneys' fees, made by any third party due to or arising out of (a) the User-Generated Content you access through the Services; (b) your violation of these Terms, (c) your use or misuse of any user's Personal Data and Location Data, (d) any violation of the rights of any other person or entity by you, or (e) your employment of the Services to meet another user in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
JURISDICTION & ARBITRATION
11. Governing Law
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware and controlling United States law as applicable, without regard to its conflict of law principles.
If you are a resident of the European Union: These Terms shall be governed by and construed in accordance with Dutch law, without regard to its conflict of law principles.
12. Disputes and Arbitration, Jurisdiction and Venue
To the maximum extent permitted by applicable law, you and OptimalWork agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association.
Any arbitration between you and us, to the extent necessary, will be conducted in Boston, Massachusetts, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.
The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:
- the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
- the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
- You are giving up your right to have a trial by jury;
- You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
- You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in Delaware, and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or OptimalWork from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or OptimalWork from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of OptimalWork's intellectual property rights.
In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys' fees and all other related expenses incurred in such litigation or arbitration.
13. International Terms
If you are not a United States resident and you are accessing the Services from outside the United States, you agree to transfer certain information outside your home country to us, and that you will follow all the laws that apply to you.
Our policies and procedures are based primarily on United States law. Because of this, the following provisions apply specifically to users located outside of the United States: (i) you consent to the transfer, storage, and processing of your information, including but not limited to User-Generated Content and any Personal Data, to and in the United States and/or other countries; (ii) if you are using the Services from a country embargoed by the United States you are not authorized to access or make use of the Services; (iii) you agree to comply with all local laws, rules, and regulations including, without limitation, all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services; (iv) you understand and agree that Services and Content may not be appropriate or available outside of the United States and that OptimalWork makes no representations otherwise; and (v) you acknowledge and agree that these Terms and the relationship between you and OptimalWork shall be governed in all respects by the laws of the State of Delaware, as they apply to agreements entered into and to be performed entirely within the State of Delaware between Delaware residents, without regard to its or any conflict of law provisions. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject OptimalWork or its affiliates to any registration requirement within such jurisdiction or country.
If our relationship or these Terms terminate, it will not limit any of our other rights or remedies, and any provision of these Terms that must survive in order to give proper effect to the intent and purpose of these Terms will survive termination, including without limitation Sections 3 (Ownership and Use of Content), Section 6 (Safety, Not Medical Advice, HIPAA), 8 (No Warranties), 9 (Limitations of Liability) and 10 (Indemnification).
15. Testimonial Disclaimer
The Site may contain testimonials by users of our products and/or services. These testimonials reflect the real-life experiences and opinions of such users. However, the experiences are personal to those particular users, and may not necessarily be representative of all users of our products and/or services. We do not claim, and you should not assume, that all users will have the same experiences. Your individual results may vary.
The testimonials on the Site are submitted in various forms such as text, audio and/or video, and are reviewed by us before being posted. Some testimonials may have been shortened for the sake of brevity where the full testimonial contained extraneous information not relevant to the general public.
The views and opinions contained in the testimonials belong solely to the individual user and do not reflect our views and opinions.
The testimonials on the Site are not intended, nor should they be construed, as claims that our products and/or services can be used to diagnose, treat, mitigate, cure, prevent or otherwise be used for any disease or medical condition. No testimonials have been clinically proven or evaluated.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Services. The Terms and any Product-Specific Terms constitute the entire agreement between you and us with respect to your use of the Services.
Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not assign, delegate, or otherwise transfer your account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.
Our notice to you via email, regular mail, or notices or links displayed in connection with the Services constitutes acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., "junk" or "spam" folder) or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed.
TALK TO US
17. Contact Us
If you have any feedback, questions or comments about the Services, please contact our Support Group by email at [email protected], and include the subject as "Attn: Legal - Terms and Conditions of Use". Please be sure to include in any email your full name, email address, postal address, and any message.