1. Your Agreement
The Optimized mobile application, software, design, servers, data, user input, content and associated services (collectively “Software and Services” or “App”) and the website available at Optimized-app.com are owned and operated by OptimizeMe GmbH (“OptimizeMe”) and are licensed to you in accordance with the terms of this End User License Agreement (hereinafter “Agreement”).
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE YOU INSTALL AND RUN THIS APP ON YOUR MOBILE DEVICE. YOUR INSTALLATION, USE, OR OPERATION OF THIS APP CONSTITUTES YOUR MANIFESTATION OF ASSENT TO AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE EXPRESSLY PROHIBITED FROM USING THE APP AND MUST TERMINATE YOUR USE OF AND UNINSTALL THE APP IMMEDIATELY. THIS AGREEMENT DOES NOT REPLACE BUT IS IN ADDITION TO ANY ITUNES AGREEMENT REQUIRED BY APPLE IN ORDER TO DOWNLOAD AND USE THE APP.
OptimizeMe and you both acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof. OptimizeMe and you both further acknowledge and agree that this Agreement is between us only, and not Apple, and that maintenance and support, warranties, product claims, intellectual property infringement disputes are not the responsibility of Apple.
OptimizeMe reserves the right, in its sole and absolute discretion, to discontinue the App or to modify, change, replace, or discontinue this Agreement. If OptimizeMe modifies, changes, or discontinues the terms of this Agreement, the Effective Date, located above, will change. Your installation or use of the App after a change in the Effective Date of this Agreement constitutes your acceptance of and manifestation of assent to any modification, change, or replacement.
This Agreement was prepared in cooperation with OptimizeMe by the Internet Law Attorneys at Traverse Legal, PLC found at www.TraverseLegal.com.
2. The Optimized App
Optimized App is a mobile application that assists in the analysis, understanding and interpretation of personal data in order to provide insight into your life. Our Software and Services were conceived, designed and made available to the public in order to link different life areas and allow users like you access to personal and potentially unknown insights concerning your health, creativity, efficiency, and emotional state based upon data. The information you see displayed in the App comes from a variety of different sources including from third party data generating sources (e.g. Moves) and other sources.
Your use of OptimizeMe’s Software and Services is purely for educational, informational, and entertainment purposes, and therefore use it at your own risk. It is not the intention of OptimizeMe to provide specific medical advice, including, at a minimum, diagnosis or treatment related to individual and/or specific medical cases, and medical advice will not be provided. OptimizeMe urges you to consult with a qualified doctor or physician for diagnosis and for answers to your health-related questions, physical or mental. The information should not be considered complete or up to date, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of licensed doctor, physician or other qualified health care provider. If you have a medical emergency, contact your doctor or 911. OptimizeMe does not recommend or endorse any specific treatment, tests, physicians, products, procedures, opinions, or other information on the App. Your reliance upon any information provided by OptimizeMe on this App is solely at your own risk. OptimizeMe is not responsible for any personal, property or other loss, inconvenience or damage of any kind and as more fully set forth below.
By downloading and using the App, you agree that OptimizeMe, and our designees and agents, may contact you by any available means, including, but not limited to, by email.
You acknowledge and agree that OptimizeMe is a service provider and will not be held liable for any costs or fees incurred by you through your use of the App, including but not limited to mobile carrier fees, SMS or other text message fees, or payment provider fees.
3. Your Warranties and Representations
You warrant and agree that you have the right, power, and legal capacity to enter into this Agreement and to adhere to the terms and conditions hereunder. You further warrant and agree that you are not prohibited from entering into this Agreement by any preexisting agreement. You warrant and agree that you are a human individual that is at least thirteen (13) years of age or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you or your parent or guardian understand it and allows for your use of the App. You agree to comply, in good faith, with the terms of this Agreement.
You represent and warrant that you are not bound by or a party to any arrangement or agreement, whether contractual or otherwise, that would prohibit you from downloading or using the Software and Services.
All users of the Software and Services further warrant the following:
- You agree to comply with the terms of this Agreement in good faith.
- You will not use the Software and Services outside of the uses specifically provided for under this Agreement, including any and all licenses.
- You will not use the Software and Services in any way that violates the rights of third parties, and you agree to comply with any and all applicable local, national, state, provincial, and international laws, treaties, and regulations.
- You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
- You understand that OptimizeMe cannot guarantee preservation of records and may delete or modify information without notice at its sole discretion.
- You will not make any derivative works of the Software and Services or delete or modify, in any way, any copyright, trademark, or other proprietary notices that appear on the Software and Services.
- You will not post or upload any false, misleading, personal, or defamatory content.
- You will not use, modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, mine, transmit, or sell the Software and Services in any form or by any means, in whole or in party, without the prior written consent of OptimizeMe.
- You will not distribute Trojan horses, viruses, malware, spyware, spam, pyramid schemes, chain letters, or any other harmful or unsolicited files or communications from, by or through the Software and Services.
- You will not harvest, scrape, or otherwise collect information about users of the Software and Services.
- You will not use the Software and Services to sell any products and services if you are not an approved advertiser or otherwise have the express written permission of OptimizeMe.
OptimizeMe does not warrant or guarantee that compliance with this Agreement will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights. Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use Software and Services. Software and Services is operated world-wide and OptimizeMe makes no representation that its Software and Services are appropriate, lawful, or available for use in your location. OptimizeMe does not offer Software and Services where prohibited by law.
4. Limited License Grant
The App and related materials, including but not limited to any text, names, marks, statistics, graphics, photos, images, sounds, music, videos, software, scripts and interactive features, as well as its associated data and services generated by us, is the property of, owned by and licensed through OptimizeMe. OptimizeMe grants you a limited, non-exclusive, royalty free, non-sublicensable, non-transferrable, and non-assignable license to install and use one copy of the App in executable object code form to be used on a single mobile or portable device for non-commercial, personal purposes.
You acknowledge and agree that you are prohibited from copying, making derivative works of, modifying, publicly performing, publicly displaying, streaming, exploiting, broadcasting, decompiling, adapting, distributing, reproducing, republishing, scraping, transmitting, selling, posting, or hacking the App, in whole or in part, without the prior written consent of OptimizeMe.
You are hereby prohibited from using the trademarks, service marks, design marks, and logos of OptimizeMe, or any colorable imitation thereof, or any mark not owned or licensed by you, including, without limitation the terms “OptimizeMe” or “Ari” or the logo, as an indicator of source, as a part of a domain name, or in any way that is likely to cause confusion without the prior written consent of OptimizeMe. The App is subject to all intellectual property laws, including but not limited to trademark, copyright, patent and other privacy and proprietary laws. All trademarks, images, copyrights or rights of publicity displayed in connection with your use of the App are the property of their respective owners.
You are prohibited from using the App for any use not explicitly stated in this Agreement, absent separate written agreement signed by OptimizeMe and you pursuant to a binding agreement. Such unauthorized uses may include:
- Any use inconsistent with or in violation of this Agreement or any local, state, provincial, national, or international law, regulation, statute, ordinance, or treaty, including in any country embargoed by the United States;
- Any commercial use, such as the resale or republication of the App;
- Any modification of the App, including, but not limited to, translation into another computer language or the creation of derivative works from the App;
- Any use of the App outside of its customary or intended purposes;
- Any use of App to transmit any material that violates the rights of third parties, including but not limited to material that contains or constitutes intellectual property infringement, false advertising, invasion of privacy or defamation or is otherwise offensive;
- Any use of the App to defraud, to impersonate, to harass, or to collect personal or personally identifiable information from users of the App without their knowledge or consent;
- Any use of the App to participate in or promulgate gambling, ponzi schemes, pyramid schemes, chain letters, or unsolicited bulk or commercial emails (SPAM);
- Any use of the App to cheat, exploit, or otherwise interfere with any lawful activity;
- Any other activity that disrupts the App or its associated services, including, but not limited to, through hacking or denial of service attacks; or
- Any use of the App after you have been removed by OptimizeMe or previously banned.
5. User Generated Content
OptimizeMe may provide you with the ability to submit user generated content to the Software and Services, which may include but is not limited to text, ratings, reviews, comments, photos, videos, audio, instructions, activity data, weight, health status, mood and other content (collectively “User Generated Content”). OptimizeMe provides you the ability to add User Generated Content from unrelated third party data generating sources (e.g. Moves) and other sources. Except as otherwise licensed herein, you own all rights in and to your User Generated Content.
You acknowledge and agree that you are solely responsible for any User Generated Content that you submit to the Software and Services. You warrant that you are the exclusive owner of all right, title, and interest in and to any User Generated Content that you submit to the Software and Services and that you have the right to license and/or convey all right, title, and interest in and to the User Generated Content free and clear of any and all claims, liens, or encumbrances. You warrant that any User Generated Content that you submit to the Software and Services will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
6. Terms and Conditions of Third Parties
You agree to comply with all terms and conditions of any third party whose software or services are used in conjunction with the App, including but not limited to any vendor which provides access and download services (i.e. iTunes), any network provider (i.e. AT&T, Verizon), any service provider (i.e. Moves), any platform provider (i.e. iOS) or any hardware manufacturer (i.e. Apple iPhone).
7. Contests and Endorsements
OptimizeMe may, from time to time, conduct contests (hereinafter “Contest(s)”) through the Software and Services that may reward users in some way. Contests are void where prohibited by law or regulation, and by participating in Contests you warrant and agree that your participation in Contests will not violate any law, regulation, or statute. All international, federal, state, and local laws and regulations apply.
NO PURCHASE IS NECESSARY TO PARTICIPATE IN A CONTEST HELD THROUGH THE SOFTWARE AND SERVICES.
OptimizeMe may, at its sole discretion, provide you with a Reward you for uploading your User Generated Content. By uploading your User Generated Content photographs, you warrant and agree that you will comply with all state and federal laws or regulations applicable to advertisements and endorsements, including but not limited to the FTC’s false advertising regulations located at 16 CFR Part 255.
8. We Do Not Endorse Any Product or Service
OptimizeMe may allow advertisers to display advertisements within our Software and Services. However, OptimizeMe does not endorse or recommend any commercial product, process, or service, including unrelated third party data generating sources (e.g. Moves). The views and opinions of users, contributors, and others expressed on this Software and Services do not necessarily state or reflect those of OptimizeMe and are not intended to be used for advertising or product endorsement purposes.
9. Section 230 of Communications Decency Act
You acknowledge and agree that OptimizeMe is an interactive computer service provider under Section 230 of the Communications Decency Act. Though OptimizeMe may edit, remove, or control the content displayed through the Software and Services and provided to aid in the operation of its App, you agree that OptimizeMe will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Software and Services or otherwise. OptimizeMe may, within its sole and absolute discretion, remove any User Generated Content for any reason and for no reason at all.
10. COPPA Compliance
The Software and Services is not directed to persons under the age of eighteen (18) and OptimizeMe will not knowingly collect personally identifiable information from children under the age of eighteen (18) absent the requirements set forth in this Agreement. If OptimizeMe inadvertently collects personally identifiable information, OptimizeMe will delete the personally identifiable information in accordance with its security protocols, upon notice.
OptimizeMe encourages its users to submit comments, suggestions, and error reports to OptimizeMe using feedback function (in Settings) or the website. You acknowledge and agree that any feedback submitted to OptimizeMe, including, but not limited to, any intellectual property or other proprietary information contained within that feedback, will become the exclusive property of OptimizeMe. You agree to assign all right and title in or to any and all feedback that you submit to OptimizeMe and execute any and all documents necessary to assign your rights to any and all feedback to OptimizeMe upon OptimizeMe’s request, including but not limited to any documents necessary to perfect OptimizeMe’s rights in and to intellectual property or proprietary rights.
12. Disclaimer and Limitation of Liability
You acknowledge and agree that the content contained within the App will not be considered a representation to reasonably be relied upon and nothing within the App will be construed to create a duty of care in OptimizeMe or a warranty of any kind. You acknowledge and agree that OptimizeMe takes no responsibility for, is not obligated to monitor and cannot be held liable for all the information contained within the App as provided by you, third parties (including feed provider), User Generated Content contained within the App, information or websites linked to or through the App, information sent to OptimizeMe by third parties, and information intercepted by third parties. You agree to hold OptimizeMe harmless for any and all inaccuracies, omissions, errors, loss of data, corruption of data, failure of hardware, failure of the App, or misuse of the App.
OPTIMIZEME PROVIDES THE APP ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY. YOU ACKNOWLEDGE AND AGREE THAT YOU USE THE APP AT YOUR OWN RISK AND THAT OPTIMIZEME WILL NOT BE HELD LIABLE FOR ANY DEFECTS, ERRORS, OMISSIONS, BUGS, OR DOWNTIME. ANY ATTEMPT BY OPTIMIZEME TO MODIFY THE APP WILL NOT BE DEEMED TO BE A WAIVER OF THIS LIMITATION OF LIABILITY. OPTIMIZEME WILL NOT BE HELD LIABLE FOR ANY CONTENT CONTAINED WITHIN THE APP, ANY THIRD PARTY LINKS OR ADVERTISING ACCESSIBLE THROUGH THE APP, OR ANY CONTENT TRANSMITTED THROUGH THE APP.
OPTIMIZEME WILL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL DAMAGES, EXEMPLARY DAMAGES, INDIRECT DAMAGES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOST INFORMATION ARISING OUT OF THE USE, WHETHER PROPER OR IMPROPER, OF THE APP, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPTIMIZEME DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA. YOU BEAR THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP YOUR OWN DATA, NETWORK, HARDWARE, SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, PHONES, AND SECURITY.
UNDER ANY CIRCUMSTANCES, YOU ACKNOWLEDGE AND AGREE THAT OPTIMIZEME’S MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR THE APP. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS LISTED IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, hold harmless, and defend OptimizeMe, its officers, members, employees, agents, and directors from and against any and all claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to your use of the App, your violation of a term or provision of this Agreement, or your violation of the rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify OptimizeMe will survive the termination or failure of this Agreement and your use of the App. You acknowledge and agree that your obligation to defend OptimizeMe will not provide you with the right to control OptimizeMe’s defense and you expressly agree that OptimizeMe has the right to direct and control its defense regardless of your obligation to defend OptimizeMe.
You are expressly prohibited from assigning your rights or obligations under this Agreement without OptimizeMe’s prior written consent. OptimizeMe may assign its rights or obligations under this Agreement at any time, including but not limited to in a sale of the OptimizeMe business or in a sale of the App.
This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and hereby supersedes all prior agreements, statements, or representations. This Agreement may only be modified by a writing signed by both parties or by OptimizeMe, who reserves the right to alter this Agreement and will notify you of any alterations so as to allow you to stop using the Software and Services if you do not agree to the alterations. Your use of Software and Services after any alteration signifies your acceptance of the terms and conditions of this Agreement and you are bound by them.
16. Choice of Laws and Resolution of Disputes
You agree that for all legal and non-legal purposes, the App is located in Switzerland. You agree that the App does not give rise to personal jurisdiction over OptimizeMe in jurisdictions other than Switzerland. This Agreement will be interpreted under and governed by the laws and legal principles of Switzerland, without regard to its conflicts of laws principles or statutes.
YOU AND OPTIMIZEME AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, VIOLATION, OR TERMINATION OF THIS AGREEMENT. THIS ARBITRATION WILL BE HELD IN ZURICH, SWITZERLAND AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF THE LEGAL PRINCIPLES AND LAWS OF SWITZERLAND AND WILL HAVE THE DISCRETION TO AWARD ALL COSTS AND ATTORNEYS’ FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND OPTIMIZEME AGREE THAT THE DETERMINATION OR AWARD OF THIS ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT SITTING ANYWHERE THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. YOU AND OPTIMIZEME AGREE THAT THE PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN SWITZERLAND IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND OPTIMIZEME HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
OptimizeMe may, but is not obligated to participate in any dispute between users. IF YOU HAVE A DISPUTE WITH ANOTHER USER, YOU RELEASE OPTIMIZEME FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, KNOWN OR UNKNOWN. If you are a California resident, you waive California Civil Code §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."
17. Additional Provisions
No waiver of rights under this Agreement by either party will be recognized unless made in writing and signed by the party to be charged. This Agreement is solely between OptimizeMe and you and will not confer any rights or remedies upon any third party, including third party beneficiaries. A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
YOU AND OPTIMIZEME AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST OPTIMIZEME ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONTEARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Any notice under this Agreement or other contact must be sent via certified mail to OptimizeMe GmbH, Hagenholzstrasse 70, 8050 Zurich, Switzerland, with a copy via email to: firstname.lastname@example.org.
Effective Date: December 3, 2013