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Terms of Use

OIX TERMS OF USE

 

PLEASE READ THESE TERMS OF USE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY THE ONLINE INCENTIVE EXCHANGE, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“OIX”). BY UTILIZING THE OIX, THE SYSTEM, OR ITS SERVICES IN ANY MANNER, YOU (BOTH FOR YOURSELF AND ON BEHALF OF THE ENTITY YOU REPRESENT) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE, SYSTEM OR SERVICES.  USE OF OIX’S SYSTEM OR SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. 

 

1.     ACCESS TO THE SYSTEM.  OIX will make the System available to Client with a Monthly Availability Percentage of at least 99.9% in any calendar month.  The Monthly Availability Percentage means the total number of minutes in a calendar month minus the number of minutes the System is not available in the calendar month, divided by the total number of minutes in the calendar month (excluding time for scheduled or emergency maintenance as described below).  If the Monthly Available Percentage falls below 99.9% for 3 or more months in any Term (as defined by the License Agreement), Client shall have the option to terminate this Agreement.  Notwithstanding the foregoing, OIX reserves the right to suspend Client’s access to the System (i) for scheduled or emergency maintenance, provided that scheduled maintenance shall not occur during the hours of 8:00 a.m. to 10:00 p.m. Eastern Time, or (ii) in the event Client is in breach of this Agreement or the License Agreement, including failure to pay any amounts due to OIX. Subject to the terms hereof, OIX will provide reasonable support to Client for the Services from Monday through Friday from 8:00 a.m. to 6:00 p.m. Pacific Time.

2.     ACCESS TO THE SERVICES.  TheOIX.com website and domain name and any other linked pages, features, content, software, or application services (including without limitation any mobile application services) offered from time to time by OIX in connection therewith (collectively, the “Services”) are owned and operated by OIX. The term “Services” includes, without limitation, use of the OIX website, any service OIX performs for you and the Content (as defined below) offered by OIX on the website (“Platform”). OIX may change, suspend or discontinue the Services at any time, and OIX reserves the right to suspend Client’s access to the Services for scheduled or emergency maintenance. OIX may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.

OIX does not knowingly collect or solicit personal information from anyone under the age of 18 or knowingly allow such persons to register for the Services.  If you are under 18, please do not attempt to register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 18 may provide any personal information to OIX or on the Services.  In the event that we learn that we have collected personal information from a child under age 18 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 18, please contact us at (855) INFO-OIX (463-6649).

You represent and warrant to OIX that: (i) you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 18 years or age or older; (ii) all registration information you submit is accurate and truthful; (iii) you will act in good faith and use best efforts to estimate credits properly; and (iv) you will maintain the accuracy of such information.  You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.

 

3.     SYSTEM, SERVICES, CONTENT AND INTELLECTUAL PROPERTY RIGHTS. The System, Services and their contents may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the System or the Services (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Content,”)) are protected by copyright.  You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the System or Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. The System and the Services are protected by copyright as collective works and/or compilations, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. You will not, nor will you permit any third party to: (i) copy, modify, reverse engineer, decompile, disassemble, make derivative works based upon the System or Services, the System’s or Services’ user interface, business logic, workflow, or data architecture, or use the System or Services to develop any similar products, or otherwise attempt to discover the source code, object code or underlying structure, or algorithms of the System or Services (“Software”) or any documentation or data related to the System or Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or (ii) sell, license, rent, lease or otherwise transfer the System or Services (or any part thereof) to, or use it for the benefit of, any third party.  Except as expressly set forth herein, OIX alone (and its licensors, where applicable) will retain all intellectual property rights relating to the System and Services, or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the System, Services and/or the Software, which are hereby assigned to the OIX. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. With respect to the Services, you understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that OIX will not be liable for any errors or omissions in any content.  OIX cannot guarantee the authenticity of any data which users or merchants may provide about themselves. With respect to System, under no circumstances will OIX be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the System or the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, System or Software, or any intellectual property rights

4.     RESTRICTIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS. You warrant, represent and agree that you will not knowingly use the System or Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without OIX’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of OIX; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. OIX reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if OIX is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not OIX, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the System or Services.  When accessing Services, you warrant that you possess all rights necessary to provide such content to OIX and to grant OIX the rights to use such information in connection with the Services and as otherwise provided herein. 

All information that you learn or obtain through the System or the Services constitutes as “Confidential Information.”  You shall not reproduce, retransmit, disseminate, sell or distribute, and agrees to keep confidential, all Confidential Information and you will not use Confidential Information for any purpose except those purposes allowed under this Agreement.  You are responsible for all of your activity in connection with the System or the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the System or the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the System or the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited.  You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Services is strictly prohibited. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.

 

You have undertaken all acts necessary for the authorization, execution and delivery of this Agreement and all information provided by you in connection with this Agreement, or use of the OIX, is true, accurate and correct in all material respects.  You will notify the OIX immediately if any representation or warranty made by you in this Agreement materially changes or ceases to be true, accurate and correct in any material respect.

 

5.     WARRANTY DISCLAIMER. OIX has no special relationship with or fiduciary duty to you.  You acknowledge that OIX has no control over, and no duty to take any action regarding: which users gain access to the System or the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content.  You acknowledge that the OIX does not and will not provide any legal, tax, estate planning or accounting advice or any other advice regarding tax credits or incentives. You release OIX from all liability for you having acquired or not acquired Content through the Services.  OIX makes no representations concerning any content contained in or accessed through the Services, and OIX will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. OIX makes no representations or warranties regarding the accuracy of descriptions anywhere on the Services, or regarding suggestions or recommendations of services or products offered or purchased through the Services.  Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind from OIX or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product or service. THE SERVICES, CONTENT, PRODUCTS AND SERVICES OBTAINED THROUGH THE SERVICES, AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

6.     PRIVACY POLICY. For information regarding OIX’s treatment of personally identifiable information, please review OIX’s current Privacy Policy (located in the footer of the Website and in the Client’s Dashboard on the Services), which is hereby incorporated by reference; your acceptance of this Agreement constitutes your acceptance and agreement to be bound by OIX’s Privacy Policy. 

7.     SERVICES REGISTRATION AND SECURITY. As a condition to using the Services, you will be required to register with OIX and select a password and user name (“OIX User ID”).  You shall provide OIX with accurate, complete, and updated registration information.  Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your Services account.  You may not (i) select or use as a OIX User ID a name of another person with the intent to impersonate that person; or (ii) use as a OIX User ID a name subject to any rights of a person other than you without appropriate authorization.  OIX reserves the right to refuse registration of or cancel a OIX User ID in its discretion.  You shall be responsible for maintaining the confidentiality of your OIX User ID and password.  If you become aware of any deliberate or inadvertent disclosure, loss, theft or unauthorized use of your OIX User ID and password, you must notify the OIX immediately and request a new OIX User ID and password. You may not access or attempt to access the Services using the OIX User ID and password of any other user, or permit any other person or entity to access or attempt to access the Services using your OIX User ID and password. In order to maintain a License with the OIX, you are required to maintain an active email account and you must inform the OIX of any changes to your registered email address within 24 hours of said change. OIX represents and warrants that OIX shall comply with OIX’s Security Policy and shall, at a minimum, abide by the security standards and guidelines set forth in this Section 7. OIX shall take commercially reasonable steps to institute proper information security, aligned with applicable standards. Commercially reasonable steps include but are not limited to: firewalls, security monitoring and alarms, intrusion detection systems, up-to-date anti-virus protection, up-to-date patches, required password authentication at login, keeping a record of all computers, and periodic security audits as are standard or customary in the industry.  If OIX experiences an information security incident or suspicious activity, including the loss or compromise of any Client Data, Client or OIX credentials, hardware, storage device or software, OIX shall promptly notify Client in writing and via phone.  If OIX services are subject to a security incident or attack that affects Client and requires a rapid response, OIX shall deflect or disable such attack in consultation with Client information security personnel.  OIX shall cooperate fully with Client, at OIX’s cost, with a complete investigation including any subsequent litigation against third parties. OIX shall also perform its own reasonable investigation of the security incident, take all reasonable steps to mitigate the security incident and keep all relevant evidence relating to the security incident.  OIX shall provide Client the results of its investigation including a post-mortem and action plan.  If Client discloses any Client Data to OIX which becomes subject to an actual or suspected information security incident, OIX shall follow all applicable United States state and federal laws regarding disclosures in consultation with Client, provided that OIX shall not take any independent steps or make any disclosures to third parties related to Client Data without Client’s prior written consent. 

8.     INDEMNITY. You will indemnify and hold OIX, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any third party claim or demand made by any third party due to or arising out of your access to the Services, use of the System or Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity, or any breach of warranty or representation, or nonfulfillment of any agreement or covenant on the part of you or any of your representatives or affiliates under this Agreement, or from any misrepresentation in or omission from any certificate, schedule, statement, document or instrument furnished by you. The OIX hereby agrees to be responsible for, reimburse, indemnify, defend, and hold harmless, and release you and your successors in interest, from and against and in respect of any adverse consequences (including those that if successful would constitute an indemnifiable claim), incurred or suffered by you or your successors in interest, whether or not involving a third party claim, that result from, relate to or arise out of any breach of warranty or representation, or nonfulfillment of any agreement or covenant on the part of the OIX or any of its representatives under this Agreement or the License Agreement.

9.     LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT, EXCEPTING THIRD PARTY INDEMNIFICATION CLAIMS OR AN INFORMATION SECURITY INCIDENT, SHALL EITHER PARTY OR ANY OF THEIR SUCCESSORS IN INTEREST BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY CLAIM UNDER THIS AGREEMENT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CLIENT TO THE OIX DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM AND THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE); (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) FOR ANY TECHNICAL PROBLEMS, FAILURES OR MALFUNCTIONS OF THE OIX SYSTEM OR SERVICES, ACCESS OR CAPACITY PROBLEMS, HIGH INTERNET TRAFFIC, INTERRUPTIONS DUE TO SCHEDULED OR UNSCHEDULED MAINTENANCE, UPGRADING OR REPAIRS, SECURITY BREACHES OR UNAUTHORIZED ACCESS WHICH ARE BEYOND THE OIX’S REASONABLE CONTROL.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.  EACH PARTYAGREES THAT SUCH PARTY MAY NOT BRING ANY ACTION AGAINST THE OTHER PARTY UNLESS SUCH PARTY BRINGS SUCH ACTION WITHIN 1 YEAR OF THE OCCURRENCE OR LACK OF OCCURRENCE OF THE ACT OR OMISSION COMPLAINED OF.

10.  FEES AND PAYMENT.  OIX reserves the right to require payment of fees for use of the System or Services during the Term as described above in the License Agreement and you will be responsible for those fees per the payment terms defined in the License Agreement. You agree to act in good faith and use best efforts to accurately estimate credit amounts when using the System or Services. Any fees paid hereunder are non-refundable. 

11.  TERMINATION.  This Agreement and the License Agreement shall remain in full force and effect while you use the System or the Services.  Client may terminate its use of the System, Services or OIX License at any time.  With respect to the System, OIX may terminate or suspend Client’s access to the System for violations to Sections 3 or 4 of this Agreement or as a result of delinquent payments.  All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. With respect to the Services, OIX may terminate or suspend your access to Services or your License at any time, for any reason, and without warning. OIX may also terminate or suspend any and all access to the System or the Services immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement or the License Agreement. Upon termination of your account, your right to use and access the System or the Services will immediately cease.

12.  MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. OIX shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond OIX’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Both parties agree that the License Agreement and this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the License Agreement and this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.  Notwithstanding anything else, you may not provide to any person or export or re-export any aspect of the System, the Services or any Software or anything related to the OIX or any direct product thereof, (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  All communications between you and the OIX shall be via electronic mail (“email”) to the registered email address of the contact person at the Client as stated in the License Agreement. In addition, the OIX may communicate with you regarding any amendments to its Privacy Policy. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind OIX in any respect whatsoever.  Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.

13.  ARBITRATION; GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the county of Los Angeles, in the state of California. 

14.  CONTACTIf you have any questions, complaints, or claims with respect to the Services, you may contact us at (855) INFO-OIX (463-6649) or support@theoix.com.

 

Effective Date: February 1, 2018