Last revised: April 5, 2019
“Alarm” means any security-related alarm triggered or otherwise activated through the use of the Service.
“Alarm Alert” means any Alert related to an Alarm provided to you or on your behalf, including to people you have designated via your Account, through the Service.
“Alerts” means any alerts, notifications, messages or communications provided to you, by you or on your behalf through the Service.
“Content” means, collectively, your Usage Content and Occly Content.
“Corporate Subscribers” means, collectively, all Subscribers that are not Individual Subscribers and, each individually, a “Corporate Subscriber”.
“CrowdWise” means the portion of the Service that displays points of interest and other information.
“CrowdWise Rewards” means the points or other rewards earned by you by designating points of interest on CrowdWise.
“HomeWatch” means the portion of the Service that provides for Alarms through detection modes based on sound, motion or a combination thereof while the applicable Occly Device is stationary.
“Lease Deposit Subscription” means a Lease Description that requires the payment of a Deposit.
“Lease Subscribers” means, collectively, all Subscribers that have not purchased Occly Devices, and each individually, a “Lease Subscriber”.
“Lease Subscription” means an agreement by you to pay for use and access to the Service on an ongoing basis.
“Monitoring Feature” means the portion of the Service that provides for the monitoring of an Alarm by Occly or a third-party.
“Occly”, “we”, “us” “our” and terms of similar meaning means Occly LLC and any applicable affiliate.
“Pay Subscription” means an agreement by you to pay for a portion of the Service for a fixed period of time.
“Purchase Subscribers” means, collectively, all Subscribers that are not Lease Subscribers, and each individually, a “Purchase Subscriber”.
“Subscribers” means, collectively, Individual Subscribers, Institutional Subscribers and Parent Subscribers, and each individually, a “Subscriber”.
“User” means all persons, individual or otherwise, who access, receive information from, interact with, or otherwise use or obtain the benefit from the Service, regardless of whether such person creates an Account. Users may include, for example, an Institutional Subscriber’s employees, contractors and agents.
“You”, “you”, “Your” or “your” means a Subscriber and any User of the Service associated or otherwise in connection with such Subscriber’s Product or Account (as defined below).
3. Account; Text Messaging.
Your Occly account (“Account”) gives you access to the Service that we may establish and maintain from time to time and in our sole discretion. You may never use another person’s Account without permission. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. You must notify Occly immediately of any breach of security or unauthorized use of your Account. Occly will not be liable for any losses or damage caused by any unauthorized use of your Account.
4. Acceptable Use; Usage Content.
You agree to comply with all applicable laws, rules and regulations in connection with your use of the Service, including without limitation “two party” or “all party” consent laws applicable to the recording of images or conversations. You further agree not to collect, obtain or distribute content or data through your use of the Service (such content or data, including without limitation all captured or recorded sounds and images, is collectively referred to as “Usage Content”) that violates the privacy, intellectual property rights or other proprietary rights of any third party, or for any purposes that we reasonably determine to be harassing, obscene, unlawful, defamatory, threatening, coercive, fraudulent, abusive or otherwise objectionable. You are solely responsible for all Usage Content and all other content and information that you collect, upload, store, share, maintain or transmit through the Service.
You agree not to post or transmit Usage Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property, including first responders; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal; (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; (ix) violates any school or other applicable policy; or (x) interferes with other Users of the Service.
By uploading, storing, transmitting or distributing Usage Content to or through the Service, you grant Occly and its affiliates and subsidiaries a worldwide, non-exclusive, royalty-free, fully transferable right (with the right to sublicense) to use the Usage Content however Occly desires, including without limitation to copy, delete, share, display, process, perform, reproduce, distribute, publish, modify, adapt, transmit, translate, aggregate, create derivative works therefrom, anonymize and de-identify Usage Content and/or incorporate such Usage Content in any form, medium or technology throughout the world (whether now existing or hereafter created or developed) and/or sell and/or distribute such Usage Content in or through any medium, technology or distribution method throughout the world (whether now existing or hereafter created or developed). Occly is under no obligation to pay you any compensation for Usage Content.
Use the Service in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully utilizing the Service, or that could damage, disable, overburden, or impair the functioning of the Service in any manner;
Compromise the security of the Service;
Send any unsolicited or unauthorized advertising, spam, solicitations, or promotional materials;
Use any robot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data; Reverse engineer any aspect of the Service (including, without limitation, the Software, the Occly Devices and the other Products) or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content, or code of the Service;
Use or attempt to use another Subscriber’s Account without authorization;
Attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Service that you are not authorized to access;
Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services without our express written consent to do so;
Engage in any harassing, intimidating, predatory, or stalking conduct;
Create false identities or impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
Buy, sell, rent, lease, or otherwise offer in exchange for any compensation, access to your Account or another person’s Usage Content without our prior written consent;
Develop any third-party applications that interact with Usage Content or the Service without our prior written consent; and
Disassemble any of the Occly Devices and the other Products.
5. Your License to Use the Software and Applications
6. Your Use of Our Applications
We may make Applications available to access the Service via a mobile and/or other hardware device. To use the Applications, you must have a device that is compatible with the Applications and Occly does not warrant that the Applications will be compatible with all devices. You may use mobile data in connection with the Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
Applications from iTunes.
The following applies to any Applications you acquire from the iTunes Store (“iTunes-Sourced Software”):
7. Purchase Subscribers - Types of Subscriptions
There is no cost for a Purchase Subscriber to use the Service to trigger an Alarm, designate persons to be included in your network to receive an Alarm Alert (the “Alarm Alert Feature”), to use CrowdWise (but not use any CrowdWise Rewards) or to access its Usage Content via its Account (collectively, “Standard Services”).
The ability to access the Monitoring Feature and use CrowdWise Rewards requires a Pay Subscription (such type of Pay Subscription, a “Basic Subscription”). The ability to access HomeWatch requires a Pay Subscription (such type of Pay Subscription, a “Premium Subscription”). Each Pay Subscription includes all of the Standard Services, and the Premium Subscription also includes the portion of the Service available through a Basic Subscription. If you select a Pay Subscription, you agree to the pricing and payment terms, as we may update them from time to time. Occly may add new features to a Pay Subscription for additional fees and charges, or amend fees and charges for the portion of the Service included in a Pay Subscription, at any time in its sole discretion and we will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for a Pay Subscription will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the portion of the Service included in the applicable Pay Subscription (other than the Standard Services) after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from such Pay Subscription prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
As of the date first written above, the Services (other than accessing Usage Content via an Account) are only available within the United States of America. Without limiting the generality of the foregoing, the Alarm Alert Feature and the Monitoring Feature are not provided or supported outside of the United States of America.
How to Purchase a Pay Subscription
How to Cancel Your Pay Subscription
If you are an Individual Subscriber and you would like to cancel your Pay Subscription, send an email to firstname.lastname@example.org. You must include the name of the holder of the Account, the email address associated with the Account and a phone number where you can be reached along with the message “Cancel Subscription” in the subject line, as appropriate. If you are a Corporate Subscriber and you would like to cancel your Pay Subscription, you must contact us via phone.
Purchase Subscribers may cancel a Pay Subscription at any time; however, there are no refunds for any unused time on such Pay Subscription.
8. Lease Subscribers
If you are a Lease Subscriber, you cannot use and access any portion of the Service except pursuant to a Lease Subscription and you agree that the Occly Device is and shall remain the personal property of Occly.
As of the date first written above, the Services (other than accessing Usage Content via an Account) are only available within the United States of America.
Pricing and Payment Terms of Lease Subscription
By selecting to become a Lease Subscriber and not a Purchase Subscriber, you agree to the pricing and payment terms of the Lease Subscription, as we may update them from time to time. Occly may amend the fees and charges for the Lease Subscription at any time in its sole discretion and we will communicate any price changes to you in advance and, if applicable, how to accept those changes; provided, however, that no amendment will be effective until the expiration of your Lease Pre-Paid Period (as defined below). Price changes for a Lease Subscription will take effect at the start of the next monthly period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by terminating the Lease Subscription. Please therefore make sure you read any such notification of price changes carefully.
How to Terminate a Lease Subscription
If you would like to terminate your Lease Subscription, send an email to email@example.com. You must include the name of the holder of the Account, the email address associated with the Account and a phone number where you can be reached along with the message “Terminate Lease Subscription” in the subject line. After receipt of a conforming email, Occly will reply with a return merchant authorization (RMA) number to be included in your return of the Occly Device (the date of such email from Occly, the “Lease Subscription Termination Notification Date”).
A Lease Subscriber may terminate a Lease Subscription at any time; however, there are no refunds for any unused time on such Lease Subscription.
For Lease Deposit Subscriptions, if a Lease Subscriber terminates a Lease Device Subscription prior to the six (6) month anniversary of the commencement of such Lease Device Subscription, then such early termination shall result in a charge equal to the amount of the cancellation fee or termination fee displayed in your Account or the confirmation email for such Lease Device Subscription Lease Subscription (the “Cancellation Fee”). By providing a credit card number or other payment method, you authorize Occly (or a third party payment processor) to charge such payment method for the Cancellation Fee.
Obligation to Return the Occly Device.
You shall return the Occly Device to Occly promptly following the Lease Subscription Termination Notification Date or the cancellation of your Lease Subscription by Occly. Failure to return the Occly Device to Occly in the original, undamaged packaging and in satisfactory condition, in each case as determined by Occly in its sole discretion, along with the RMA number within thirty (30) days after either such date will result in a charge equal to the MSRP for the applicable Occly Device (the “Non-Return Fee”) (the earlier of the date of such return of the Occly Device or the receipt by Occly of the Non-Return Fee, the “Lease Termination Date”); provided, however, that solely for Lease Deposit Subscriptions, the amount of the Non-Return Fee shall be the amount as displayed in your Account or in the confirmation email for your Lease Deposit Subscription. You alone bear the risk of loss if the Occly Device is destroyed, damaged (ordinary wear and tear excepted) or not delivered to Occly. By providing a credit card number or other payment method, you authorize Occly (or a third party payment processor) to charge such payment method for the Non-Return Fee.
For Lease Deposit Subscriptions, if the applicable Occly Device is returned to Occly and a Non-Return Fee is not charged, then Occly shall return to you the amount of the Deposit less the amount of the Cancellation Fee, if any.
Occly Lease Device Replacement
At the expiration of the first twenty-four (24) month period of your Lease Subscription and each twenty-four month anniversary thereof, if and only if you have paid in full all fees and charges due for such Lease Subscription, Occly will deliver to you at the address listed in your Account, at Occly’s sole expense, a new version of the Occly Device subject to such Lease Subscription (the “Occly LDR”) and free shipping information for you to return the existing Occly Device to Occly. You agree that, upon your receipt of the Occly LDR, you shall return your existing Occly Device to Occly. If your existing Occly Device is not returned in satisfactory condition as determined by Occly in its sole discretion within thirty (30) days after your receipt of the New Occly Device, then a charge equal to the MSRP for the applicable Occly Device is due (the “Non-Return Device Fee”). You alone bear the risk of loss if the Occly Device is destroyed, damaged (ordinary wear and tear excepted) or not delivered to Occly. By providing a credit card number or other payment method to Occly at any time, you authorize Occly (or a third party payment processor) to charge such payment method for the Non-Return Device Fee.
9. Alarms, Alarm Alerts and other Alerts.
Occly may from time to time provide automatic Alerts and Account-related Alerts. Automatic Alerts are sent to you following certain changes made online to your Account, such as a change in your registration information. You may have the option to suppress some of these automatic Alerts, but we recommend that you do not do so because limiting Alerts could negatively affect performance of the Service. Occly may add new Alerts from time to time, or cease to provide certain Alerts at any time upon its sole discretion. Electronic Alerts may be sent to the email address or telephone number you have provided. If your email address or telephone number changes, you are responsible for informing us of that change. Because Alerts are not encrypted, we will never include your passcode. However, Alerts may include some information about your Account. Depending upon which Alerts you select, information such as a subscription renewal, payment reminder or that a payment method has expired may be included. Anyone with access to your email or telephone may be able to view the content of these Alerts.
You understand and agree that any Alerts, including without limitation Alarm Alerts, may be delayed or prevented by a variety of factors. Occly does its best to provide Alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any Alert.
YOU AGREE THAT OCCLY, ITS AFFILIATES AND THEIR RESPECTIVE MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, CONTRACTORS AND SERVICE PROVIDERS (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ENTITIES THAT PROVIDE SERVICES FOR THE MONITORING FEATURE) (EACH, AN “OCCLY RELEASED PARTY” AND COLLECTIVELY, THE “OCCLY RELEASED PARTIES”) AND MANUFACTURERS, DISTRIBUTORS, RESELLERS, BUSINESS PARTNERS, LICENSORS AND ALL EMERGENCY RESPONDERS AND ALL OTHER INDIVIDUALS, MUNICIPALITIES, AGENCIES OR ENTITIES PROVIDING AID OR ASSISTANCE IN CONNECTION WITH AN ALARM OR AN ALERT, OR ANY OF THE SUCCESSORS OR ASSIGNS OF THE FOREGOING (TOGETHER WITH THE OCCLY RELEASED PARTIES, EACH A “RELEASED PARTY” AND COLLECTIVELY THE “RELEASED PARTIES”) SHALL NOT BE LIABLE FOR ANY OMISSION, DELAYS, FAILURE TO DELIVER, OR MISDIRECTED DELIVERY OF ANY ALARM OR ALARM ALERT; FOR ANY ERRORS IN THE CONTENT OF AN ALERT; OR FOR ANY ACTIONS TAKEN OR NOT TAKEN BY YOU, ANY RELEASED PARTY OR ANY OTHER PARTY IN CONNECTION WITH AN ALARM OR AN ALERT.
10. Our Ownership of the Service and Occly Content
You may choose to submit suggestions comments or ideas about the Service, including without limitation about how to improve the Service (“Suggestions”). By submitting Suggestions, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Occly under any fiduciary or other obligation, and that we are free to use the Suggestions without any additional compensation to you, and/or to disclose the Suggestions on a nonconfidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Occly does not waive any rights to use similar or related ideas previously known to Occly, or developed by its employees, or obtained from sources other than you.
All trademarks, service marks, product names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Occly.
Your Agreement Not To Assert or Advise Others
You agree, during the term of your Account and following termination or expiration, you will not assert (or encourage any third party to assert), nor will you authorize, assist, counsel, advise or act as an expert in any action asserted against us or any of our affiliates, Users, vendors, distribution partners, resellers, licensees or licensors, any patent infringement or other intellectual property infringement claim regarding the Service.
11. Modifications to the Service
We reserve the right to modify or discontinue, temporarily or permanently, the Service or any features or portions thereof without prior notice. You agree that we will not be liable for any modification, suspension, or discontinuance of the Service or any part thereof.
12. Corporate Subscribers
Except as otherwise expressly agreed in writing by Occly, all Corporate Subscribers must be Purchase Subscribers and have a Pay Subscription. All Accounts linked to or associated with a Corporate Subscriber will have the same type of Pay Subscription or, subject to the preceding sentence, Lease Subscription. Upon termination of the Pay Subscription of a Corporate Subscriber, each Account linked to or associated with such Corporate Subscriber will automatically be converted to Standard Services. The termination of a Lease Subscription of a Corporate Subscriber will automatically terminate each Account linked to or associated with such Corporate Subscriber.
13. Limited Warranty
The terms and conditions of the only limited warranties provided by Occly are available at https://www.occlysafety.com/warranty.
OCCLY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE PRODUCTS, THE APPLICATIONS OR ANY OTHER PORTION OF THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME OCCLY MAY REMOVE THE SERVICE (OR A PORTION THEREOF) FOR INDEFINITE PERIODS OF TIME, CANCEL THE SERVICE (OR A PORTION THEREOF) AT ANY TIME, OR OTHERWISE LIMIT OR DISABLE YOUR ACCESS TO THE SERVICE (OR A PORTION THEREOF) WITHOUT NOTICE TO YOU. OCCLY DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT THE PRODUCTS, THE APPLICATIONS OR ANY OTHER PORTION OF THE SERVICE WILL MEET YOUR REQUIREMENTS.
THE PRODUCTS, THE APPLICATIONS AND THE OTHER PORTIONS OF THE SERVICE ARE NOT A REPLACEMENT FOR COMMON SENSE OR INDIVIDUAL RESPONSIBILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE PRODUCTS, THE APPLICATIONS OR ANY OTHER PORTION OF THE SERVICE IS AT YOUR SOLE RISK. THE PRODUCTS, THE APPLICATIONS AND THE OTHER PORTION OF THE SERVICE AND ALL CONTENT DELIVERED TO YOU THROUGH YOUR USE OF THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY OCCLY) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
OCCLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND OCCLY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
14. Waiver and Limitation of Liability
IN NO CASE SHALL OCCLY AND THE OTHER RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PRODUCTS, THE APPLICATIONS OR ANY OTHER PORTION OF THE SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO ANY OF THE FOREGOING OR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF SUCH POSSIBILITY. UNDER NO CIRCUMSTANCES WILL OCCLY OR ANY OTHER RELEASED PARTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE, YOUR USAGE CONTENT OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. OCCLY AND THE OTHER RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) BODILY INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED,
OCCLY IS NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR FOR USING THE SERVICE.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, MALPRACTICE, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF OCCLY OR A RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH COUNTRIES, STATES OR JURISDICTIONS, OCCLY’S AND THE OTHER RELEASED PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATION IS PERMITTED BY LAW. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
FOR EU USERS, THIS SECTION DOES NOT REDUCE YOUR MANDATORY CONSUMER RIGHTS UNDER THE LAWS OF YOUR LOCAL JURISDICTION.
FOR NEW ZEALAND USERS, THIS SECTION DOES NOT EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY RIGHT OR REMEDY THAT CANNOT BE SO EXCLUDED, RESTRICTED OR MODIFIED INCLUDING THOSE CONFERRED BY THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993.
16. International Users
Occly makes no representations that the Service is appropriate or available for use outside of the continental Unites States. To the extent the Service is available outside the continental United States, Users who access or use the Service in such other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
17. Governing Law
the extent permitted under federal law, the laws of the State of Illinois (excluding choice of law).
ALL DISPUTES ARISING FROM, RELATED TO OR OTHERWISE IN CONNECTION WITH THE SALE OF THE PRODUCTS AND THE USE OF THE PRODUCTS, THE APPLICATIONS AND THE OTHER PORTIONS OF THE SERVICE, SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION. ANY SUCH DISPUTE SHALL NOT BE JOINED, COMBINED OR CONSOLIDATED WITH A DISPUTE INVOLVING ANY OTHER PERSON’S OR ENTITY’S CLAIM, AND SPECIFICALLY, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHALL NOT UNDER ANY CIRCUMSTANCES PROCEEDS AS PART OF A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. EACH OF YOU AND OCCLY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE ANY SUCH DISPUTE IN A COURT OR BEFORE A JURY.
The final and binding arbitration shall be conducted in accordance with and subject to the International Arbitration Rules of the American Arbitration Association (AAA) by one arbitrator. The arbitration will be conducted in Chicago, Illinois, unless you and Occly agree otherwise. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is/are bound by rulings in prior arbitrations involving the same User to the extent required by applicable law.
Nothing in this Section shall be deemed as preventing Occly from seeking injunctive or other equitable relief from the courts as necessary to protect any of Occly’s proprietary interests.
19. United States Government
Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable Account email address and are deemed given when sent. Notices to Occly must be sent to Occly LLC. 2835 North Sheffield Ave., Suite 217, Chicago, IL 60657 with a copy to the Legal Department.
A waiver of any default is not a waiver of any subsequent default.
Except for payment obligations, neither Occly nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and internet disturbance).