Optimum Installer

Terms of Service

These Optimum Installer Terms of Service (“Terms of Service”) are entered into by you and Optimum Installer. PLEASE REVIEW THESE TERMS OF SERVICE FOR USE OF OUR WEBSITE WWW.OPTIMUMINSTALLER.COM (OR SUCCESSOR DOMAIN THERETO) (OUR "SITE"), OUR SOFTWARE, AND OUR SERVICES (as defined below), INCUDING THE OPTIMUM INSTALLER CAREFULLY. THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN A COURT OR JURY TRIAL OR CLASS ACTION. By using our Site, Software and/or our Services, you agree to be legally bound by these Terms Of Service. These Terms of Service incorporate our Privacy Policy, which you should also review at http://optimuminstaller.com/legal/privacy. WE MAY AMEND THESE TERMS OR SERVICE AND/OR OUR PRIVACY POLICY FROM TIME TO TIME BY POSTING THEM ON OUR SITE OR OTHERWISE NOTIFYING YOU, AND YOU AGREE TO BE BOUND BY ANY SUCH AMENDMENTS. IF THESE TERMS OF SERVICE, INCLUDING OUR PRIVACY POLICY, OR ANY AMENDMENTS TO THESE TERMS OF SERVICE OR PRIVACY POLICY ARE UNACCEPTABLE TO YOU, YOU MUST DISCONTINUE YOUR USE OF OUR SITE AND OUR SERVICES. YOUR USE OF OUR SITE AND/OR SERVICES AFTER ANY AMENDMENTS TO THESE TERMS OF SERVICE OR OUR PRIVACY POLICY SHALL BE DEEMED AS YOUR ACCEPTANCE TO SUCH AMENDMENTS. As used in these Terms Of Service, (a) the terms "we", "us", and "our" refer to Optimum Installer, the owner of the Site and the Services, and (b) the terms "you" and "your" refer to the person accessing our Site or our Services or the entity on whose behalf a person accesses our Site or our Services.

Optimum Installer is a download manager (“Software”) that will manage the download and installation of your chosen software. All selected software will be downloaded to a temporary directory and installed automatically.

Optimum Installer is providing you with this Software on an “As-Is” basis, free of charge, subject to the terms of this End User License Agreement (this “Agreement”).

Section 1. Acknowledgement of Documents Governing Use

You acknowledge that, by using the Software or any of our Services, that you agree to be bound by, subject to and to act in accordance with the provisions of this Agreement, the Optimum Installer Privacy Policy, and such other notices regarding usage that may be promulgated from time to time by Optimum Installer in its sole and absolute discretion, all of which are available at http://www.optimuminstaller.com/legal/terms and are collectively referred to hereinafter as the Optimum Installer “Terms of Service.” In the event of any contradiction between the terms of this Agreement and the terms of the other documents comprising the Terms of Service, the provisions of this Agreement shall prevail with respect to such contradiction as pertains to the Software. Please read all documents comprising the Terms of Service carefully. If you cannot agree to any portion of the Terms of Service, please do not use all or any portion of the Services as you are not an authorized user in such case. For purposes of this Agreement, “Services” means the Optimum Installer Software, and all related websites, services, applications, components, programs, software, listings, directories, tools, API’s, message boards, databases and information made available and utilized through each of the foregoing.

Section 2. Representations and Warranties

You represent and warrant that your usage of the Software and our other Services will only be for lawful purposes and will be in accordance with this Agreement, the Terms of Service and all applicable laws generally. You also represent and warrant that you will not use the Software or any of our other Services to violate any law, regulation or ordinance or any right of Optimum Installer or any third party, including, without limitation, any right of privacy, publicity, copyright, patent or trademark or other intellectual property right. You further represent and warrant that you have the adequate legal capacity to enter into this Agreement. You represent and warrant that all registration information provided by you in connection with accessing and/or using the Services, such as registration information you provided to third party service providers, is true, accurate, current and complete and you undertake to update all such registration information if at any time during your use of the Services it becomes untrue or inaccurate. You represent and warrant that you are at least 13 years old. If you are a child under the age of 13 you are not permitted to use the Software or any of the Services. If it comes to the attention of Optimum Installer by substantiated means that a registered user of the Software or any of our Services is a child under the age of 13 years old, Optimum Installer will act promptly to cancel that user’s account, and no notice shall be required of such cancellation.

Section 3. Use for Lawful Purposes Only

You may use the Services, in whole or in part, for lawful purposes only. Without limiting the generality of the foregoing, you may not use the Services, or any portion thereof, (i) to violate or infringe upon the rights of others in any way, (ii) to violate or facilitate the violation of any law or to encourage others to violate any law, (iii) to transmit, relay, or otherwise communicate vulgar, unlawful, obscene, profane, indecent or otherwise offensive or objectionable materials or information, (iv) to falsify your identity or impersonate another person, or (v) to engage in conduct that limits the use and enjoyment of the Services, or any part thereof, by other users in any way, as determined by Optimum Installer in its sole and absolute discretion.

Section 4. Restrictions on Use

You agree not to (1) reverse engineer, disassemble, alter, decompile, duplicate, create derivative works from, make copies of, extract information from, provide or distribute other works with the Software, or any information available on, extracted or derived from the Services, or any part thereof; (2) connect, use, attempt to connect or use in any way the Software or the Services, for purposes other than your private, personal use in good faith and as explicitly offered on our website, including without limitation for any commercial purpose, such as, for instance, sending unsolicited communications of any type or nature; (3) interfere, block, disable or otherwise affect any advertising, advertising element, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Services; and (4) incorporate, integrate or otherwise include the Software or any portion thereof into any software, program or product that communicates, accesses, or otherwise connects with the Service or any other instant messaging, Internet, or online service. You further agree to abide by all laws and regulations in effect regarding your use of the Software and, more generally, the Services. Finally, you may not authorize or assist any third party to do any of the things described in this section.

Section 5. Proprietary Rights

Optimum Installer owns all intellectual property in the Services, including without limitation, the proprietary databases, software, servers, components, and algorithms necessary to operate and provide the Services. Certain of the Services may at times link to or contain content made available from third parties not associated with Optimum Installer. Any such third party content is owned by such third party and may be subject to applicable copyright and other related intellectual property laws. Optimum Installer’s formatting of such content, including the selection of such available content, and its arrangement, enhancement and coordination is copyright protected by Optimum Installer. In all cases, this Agreement does not operate to grant you any rights to use any of Optimum Installer’s content or that owned by third parties which appears within, is available through, or is linked to from our Services. Without the express permission of Optimum Installer, you may not publish, display, transmit, modify, participate in the sale or transfer of, create derivative works from or in any way exploit the content or material of the Services or any portion of it, unless permitted expressly under applicable copyright laws. You are not permitted to store any portion of the content of the Services in a computer unless it is for personal and non-commercial use. Optimum Installer and the Optimum Installer logo and/or other Optimum Installer services and products referenced herein are or may be trademarks and/or servicemarks of Optimum Installer. Nothing in this Agreement grants you any license to use any trademark, servicemark, names or logos of Optimum Installer. The names of other products and companies contained within our Services may be the trademarks or servicemarks of their respective owners. We respect the intellectual property rights of others. In compliance with 17 U.S.C. § 512, if you believe any content on our Services infringes your intellectual property rights, please contact us (in writing, including your name, address, and telephone number, and providing a description and the location of the alleged infringing material) at the address stated at the end of this Agreement so that we may review any alleged infringement.

Section 6. Posting Materials.

Unless you have the express consent of the proper owner of any materials that are copyrighted, trademarked or otherwise subject to a proprietary right you are not permitted to upload, post, or otherwise make such materials available on or though the Services. You are solely responsible for determining whether any materials you wish to upload, post or otherwise make available on or through the Services are subject to copyright, trademark or some other proprietary right. Additionally, you are solely liable for any damages that may arise as a result of any infringement of copyright, trademark or other proprietary right, or any other damages that result from materials that you upload, post or otherwise make available on or through the Services. Optimum Installer reserves the right in its sole and absolute discretion to promulgate such additional rules and policies which it deems necessary or appropriate to govern the posting or submission of materials on or through the Services.

Section 7. Privacy Policy

By using our Services, you authorize Optimum Installer to collect, use, store, and disclose the anonymous information that you provide to us in accordance with our then-current Privacy Policy, which is incorporated herein by reference and is generally available at http://optimuminstaller.com/legal/privacy. Our Privacy Policy explains how Optimum Installer collects, uses, and discloses anonymous information in connection with your use of the Services, as well as the choices Optimum Installer gives you about such uses and disclosures.

Section 8. User Generated Content.

Optimum Installer does not control, verify or endorse any information, materials or other user-generated content, including without limitation, data, text, files, links, software, chat, content, music, sound, photographs, graphics, images, video, communication, messages or other materials and terms of expression that is posted or submitted by its users on or through the Services (collectively, “User Generated Content”). Users of the Services are solely responsible for any and all User Generated Content they provide to or through the Services, and may be held legally liable or accountable for the contents of such User Generated Content. Optimum Installer reserves the right in its sole discretion and without obligation to monitor all User Generated Content to ensure conformity with the Optimum Installer Terms of Service and any other rules, policies or regulations as may be promulgated by Optimum Installer from time to time it its sole discretion, as well as any applicable laws, rules and regulations of any government having proper jurisdiction over Optimum Installer. Optimum Installer reserves the right, in its sole and absolute discretion, to edit, delete, refuse to post, remove or otherwise alter, including truncation, of any User Generated Content posted to or submitted on or through the Services for any reason, including without limitation (i) violating any portion of the Optimum Installer Terms of Service, (ii) violating any applicable law, (iii) protecting user privacy, (iv) avoiding spam, or (v) as otherwise determined by Optimum Installer in its sole discretion. Nothing set forth above shall alter or diminish your responsibility with respect to your User Generated Content, as discussed herein. Furthermore, with respect to any conduct within the Services, you acknowledge and agree that Optimum Installer assumes and shall have no liability for any action or failure to act on the part of Optimum Installer. You hereby grant Optimum Installer an irrevocable, perpetual, worldwide license to use, recreate, broadcast, reproduce, edit, market, store, distribute, have distributed, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote any User Generated Content (as such may be edited and modified by Optimum Installer in its discretion) that you submit, upload, post, send, to or through all or any portion of the Services, including without limitation both within the Services and such other products or services as Optimum Installer may designate in any medium now known or hereafter devised, for editorial, commercial, promotional and all other purposes. You agree that Optimum Installer owns all right, title, and interest in any compilation, collective work or other derivative work created by Optimum Installer using or incorporating your User Generated Content, notwithstanding the fact that you retain ownership of all right, title, and interest in your User Generated Content itself. By submitting User Generated Content to or through the Services, you represent and warrant that (i) you have the right to grant any and all necessary licenses and rights provided herein, including without limitation, all necessary copyright and other related rights to the User Generated Content, free and clear of all claims and encumbrances without violating the rights of any person or entity, including any right to privacy or publicity, and (ii) the User Generated Content does not and shall not infringe on any copyright or any other third party right nor violate any applicable law or regulation. Furthermore, you acknowledge and agree that you are solely liable for any damage resulting from infringement of copyrights, proprietary rights or any other intellectual property rights, or any other harm or damage arising from your submission and Optimum Installer’s display of any your User Generated Content and that Optimum Installer is specifically not liable for the foregoing. You hereby hold Optimum Installer harmless from and against any third party claim arising from use of your User Generated Content. You further understand, and thereby authorize, that your photograph and any other User Generated Content may be accessed, viewed, stored or reproduced by Optimum Installer and viewed by any of Optimum Installer’s members or other visitors to the Optimum Installer websites. You waive any right to privacy. You waive any right to inspect or approve uses of the photograph or your User Generated Content or to be compensated for any such uses.

Section 9. Information Submission

BY USING OUR SERVICES, YOU AGREE THAT YOU WILL NOT SUBMIT ANY CONFIDENTIAL INFORMATION OR MATERIALS TO OR THROUGH THE SERVICES OFFERED BY OPTIMUM INSTALLER. OPTIMUM INSTALLER CANNOT AND DOES NOT AGREE TO MAINTAIN ANY INFORMATION OR MATERIALS YOU SUBMIT TO OR THROUGH THE SERVICES AS CONFIDENTIAL, WITH THE EXCEPTION OF PRIVATE COMMUNICATIONS BETWEEN A USER AND OTHER USERS THAT ARE NOT SUBSEQUENTLY MADE AVAILABLE TO OPTIMUM INSTALLER. You represent and warrant that you have no rights of any kind to any information or materials that you submit to or through the Services. Furthermore, you hereby grant Optimum Installer an unrestricted, perpetual, irrevocable license to use, display, perform, reproduce, adapt, modify, transmit and distribute all information and materials that you submit to or through the Services in any and all media. Finally, to the extent you submit to Optimum Installer any ideas, concepts, know-how, techniques or other materials and/or information of any kind, you agree that we are free to use any and all of the foregoing without further permission or payment to you or any third party.

Section 10. Third Party Services.

Certain portions of our Services contain features and functionality that may linked to or be provided from a third party, including without limitation third party websites, databases, applications, software, programs, services, directories, servers, networks, and systems (collectively, “Third Party Services”). Optimum Installer provides these Third Party Services to you as a convenience only and Optimum Installer does not, in any way, control or manage such Third Party Services. As such, Optimum Installer is not responsible for the content, functionality, accuracy, truthfulness, or availability of such Third Party Services or any link contained therein. By making such Third Party Services available via the Services, Optimum Installer is not endorsing or warranting such Third Party Services in any way. Furthermore, Optimum Installer does not endorse any product or service that may be offered on or through such Third Party Services or through advertising delivered on or through the Services. Under no circumstances shall the access to or availability of such Third Party Services give rise to any liability to anyone for any damage of whatever nature whatsoever. Without limiting any of the foregoing, portions of the Services offered by Optimum Installer may contain functionality that allows for the sending, delivering or receiving of information between Optimum Installer and Optimum Installer users, as well as between Optimum Installer users and users of certain Third Party Services, which may be relayed or carried through networks, systems, servers, websites or applications (e.g. telephone and cellular networks, e-mail servers) that are not owned or controlled by Optimum Installer (“Third Party Networks”). Optimum Installer cannot and shall not in any way be responsible for the performance, availability, functionality, quality, or reliability of any of the Third Party Networks or the information sent, delivered, relayed, carried or received through any such Third Party Networks. Notwithstanding anything herein, Optimum Installer does not warrant or guarantee that the information sent, relayed, carried or delivered through Third Party Networks will reach its destination, or its correct address or recipient, or that the details of the recipient or sender are correct or accurate.

Section 11. Disclaimer of Warranties.

ALL OF THE SERVICES OF OPTIMUM INSTALLER, INCLUDING WITHOUT LIMITATION, THE SOFTWARE, ARE MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS. OPTIMUM INSTALLER DOES HEREBY SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, NON INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OFFERED BY OPTIMUM INSTALLER, INCLUDING WITHOUT LIMITATION, THE SOFTWARE, THE WEBSITES AND/OR ANY INFORMATION DELIVERED, SENT, OR RECEIVED BY USERS ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, THE SOFTWARE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. OPTIMUM INSTALLER DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, RELIABILITY OR THE RESULTS OF THE USE OF THE SERVICES, OR ANY PORTION THEREOF, INCLUDING THE SOFTWARE, THE ACCESSIBILITY TO THE SERVICES OR ANY PORTION THEREOF, OR THE INFORMATION PROVIDED IN THE VARIOUS OPTIMUM INSTALLER DATABASES, LISTINGS DATA, AND DIRECTORIES IN TERMS OF THE ACCURACY, VALIDITY, QUALITY, RELIABILITY, COMPLETENESS, STABILITY, CURRENTNESS, OR OTHERWISE OF THEIR CONTENTS OR PRODUCTS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE SOFTWARE, AND ACCESS TO THE OPTIMUM INSTALLER SERVERS OR THE VARIOUS DATABASES, LISTINGS DATA, AND DIRECTORIES, IS ASSUMED AND BORNE BY YOU. OPTIMUM INSTALLER DOES NOT REPRESENT OR WARRANT TO THE ACCURACY, VALIDITY, RELIABILITY, CORRECTNESS, COMPLETENESS OR QUALITY OF ANY INFORMATION OF ANY NATURE INCLUDING WITHOUT LIMITATION USER’S DETAILS PUBLISHED ON OR THROUGH THE SERVICES. Optimum Installer further does not warrant or guarantee that all Software versions shall be provided with similar grades and level of service, features, functionality and the ability to use the Services. Additionally, and without limiting the generality of the foregoing disclaimers in this Section 12, Optimum Installer does not warrant or guarantee (i) that any program or information will be free of infection by viruses, worms, Trojan horses or anything else that could result in the proliferation of menacing or destructive code or properties; (ii) that the information available on or through the Services will not contain adult-oriented material, or material which some individuals may deem objectionable; (iii) that the Services provided by Optimum Installer and the functions or services performed by Optimum Installer will be uninterrupted or error-free; or (iv) that defects in the Services will be corrected in a timely fashion or at all. You are solely responsible to isolate software and information, execute anti-contamination software and otherwise take steps to ensure that software or information, if contaminated or infected, will not damage your information or system. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER OPTIMUM INSTALLER NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES OR ANY OF THE SOFTWARE BUNDLED IN OPTIMUM INSTALLER. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES OR ANY OF THE SOFTWARE BUNDLED IN OPTIMUM INSTALLER, THE SPECIFIC FUNCTIONS OF THE SERVICES OR ANY OF THE SOFTWARE BUNDLED IN OPTIMUM INSTALLER, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES AND ANY OF THE SOFTWARE BUNDLED IN OPTIMUM INSTALLER “AS IS”.

Section 12. Limitation of Liability.

OPTIMUM INSTALLER WILL NOT, IN ANY EVENT, BE LIABLE TO ANY PARTY, INCLUDING YOU (i) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICES PROVIDED BY OPTIMUM INSTALLER, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE WEBSITE AND/OR ANY OF THE VARIOUS LISTINGS AND DIRECTORIES, REGARDLESS OF WHETHER OPTIMUM INSTALLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; (ii) FOR ANY CLAIM ATTRIBUTABLE TO OMISSIONS, ERRORS, DELAYS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY INFORMATION; (iii) FOR THE TRANSMISSION OR DELIVERY OF ALL OR ANY PART OF ANY INFORMATION, FOR ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION; OR (iv) IF ANY INFORMATION INFECTS OR CONTAMINATES A USER’S SYSTEM OR INFORMATION. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SINCE SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OPTIMUM INSTALLER’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the foregoing, in no event will Optimum Installer’s liability with respect to this Agreement or the Terms of Service in general exceed the greater of (i) the amount you paid (if you paid) to Optimum Installer for the Services, including the Software, or (ii) the average monthly access fee paid by you to your local telephone company or communication provider, solely and specifically for access to the Services. Furthermore, the entire risk as to the quality and performance of the Services, and the accuracy, adequacy, completeness, correctness, validity and quality thereof or of any other information is with the user.

Section 13. Indemnification.

You agree, as additional consideration for your use of the Services, to fully indemnify and hold harmless Optimum Installer and its officers, employees, agents, affiliates, partners, licensors, parents and subsidiaries from and against any demand or claim, including reasonable attorneys’ fees, made by any third party due to or arising out your use of the Services, your connection to the Services, your violations of the Terms of Service, any content you submit, post, transmit or otherwise make available through the Services, or your violation of any rights of another.

Section 14. Security and Privacy Limitations

By use of any of the Services, you acknowledge that you are aware (1) that data and information on the Services may be subject to forgery, eavesdropping, tampering, sniffing, spamming, spoofing, password cracking, harassment, fraud, electronic trespassing, hacking, nuking, system contamination including viruses, worms and Trojan horses causing unauthorized, damaging and/or harmful access to, or retrieval of, information and data on your computer; (2) of security and privacy limitations in the Services including without limitation the limitation of security, privacy and authentication measures and features; (3) that the security and privacy features available on the Services, are provided to you as a convenience only and may not operate according to their description or may not operate at all; (4) that information, data or messages may not reach their destination or may reach an erroneous address or recipient; and (5) that by activating certain features, you may provide third parties with certain limited remote access to certain files on your computer. Activating these features increases the risk that third parties will be able to tamper with your computer. You acknowledge that, as with most Internet applications (i.e. e-mail), there are certain risks associated with accepting or downloading files from or through Optimum Installer. Such risks include but are not limited to (1) damage to your computer; (2) damage to any data or files stored on your computer; (3) Optimum Installer users viewing your IP address; and (4) files you share with other Optimum Installer users being redistributed and used without your knowledge.

Section 15. Paid Services.

The Services are provided to you free of charge, unless expressly stated otherwise by Optimum Installer. If any payments were made by you for any materials, equipment, products or services that bundle or offer any part of the Services, or for accessing the Services through any platform or network, you acknowledge, that such payments were made for the equipment, products, services or access so offered, and not for the actual Services offered by Optimum Installer. Any telephone or other communications charges incurred by you to access the Services are your responsibility. Since these charges are your responsibility, you should contact your local telephone company or communication provider if you have a question about whether your access carries any long distance charges or other toll charges from your location. In some cases, Optimum Installer may offer use of or access to certain premium or subscription content or services on or through the Services for which a charge may apply (collectively, “Paid Services). Some Paid Services may require that you agree to additional terms and conditions, which will supplement this Agreement and the Terms of Service in general.

Section 16. European Users.

Optimum Installer users in the European Union, by using all or any portion of the Services, understand, acknowledge and agree to the processing of their anonymous information in the United States.

Section 17. Termination

Optimum Installer reserves the right to terminate, suspend, modify, remove, or otherwise alter (i) your account with Optimum Installer, (ii) the Services you are allowed to access, and (iii) all or any portion of any User Generated Content you may have added to the Services, in whole or in part. Optimum Installer is not obligated to provide you with any advance notice prior to taking any, some or all of the foregoing permissible actions. The Software can be uninstalled by using the standard Windows Add/Remove functionality. Select “Optimum Installer” and choose “Uninstall” or “Remove” based on your Windows Operating System.

Section 18. Optimum Installer Support

Use of the Services is at your own complete risk. Optimum Installer may provide assistance to its users, in its sole and absolute discretion, but is not obligated to do so and may terminate any assistance at any time without notice to you. Optimum Installer does not undertake nor is it obligated to provide you with any updates, upgrades, bug fixes, error corrections and/or enhancements to all or any portion of the Services, including without limitation, the Software.

Section 19. Rights and Remedies

Nothing contained in this Agreement is intended to confer upon any person not a party to this Agreement any rights or remedies. Furthermore, you understand and agree that the Optimum Installer Terms of Service, including without limitation, Optimum Installer’s enforcement of such Terms of Service, are not intended to confer, nor do they confer, any rights or remedies upon any person other than Optimum Installer. You acknowledge and agree that, in addition to any other legal remedies that may be available to it, Optimum Installer may seek and obtain injunctive relief against you in the event of a disclosure or misuse or threatened disclosure or misuse of any of the proprietary and/or confidential information of Optimum Installer contained in or accessible through use of the Services, the disclosure of which would give rise to irreparable injury to Optimum Installer, which could not adequately be compensated in damages.

Section 20. Notices.

You consent to receive any and all legally required communications, including notices, agreements, disclosures or other information in connection with any of the Services electronically from Optimum Installer (collectively, “Notices”). Optimum Installer may provide Notices to you regarding your use of the Services, including without limitation any notices with respect to violations of the Terms of Service, any updates to the Services or the Terms of Services, or any portions thereof, and promotional information, via (i) e-mail to an e-mail address provided by you, and/or (ii) by “pop up” notice, “System” notice, or any other form of notice, on any of the Services, and/or by (iii) posting the Notices on a main page or other page of the relevant service. For more information please review the Optimum Installer Privacy Policy (available at http://optimuminstaller.com/legal/privacy). You agree that certain supplemental or enhanced services, such as certain Paid Services, made available to Optimum Installer users may also have their own Notice procedures. The delivery of any Notice from Optimum Installer is effective when sent by Optimum Installer, regardless of whether you read the communication when you receive it. You may withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the Services. You will require a computer with Internet access and a Windows-based or a Macintosh-based operating system in order to access electronic communications. You can retrieve an electronic copy and a printable version of the Terms of Service at www.optimuminstaller.com/legal/terms. You acknowledge that the various notes, notices and warnings available on the Services, are provided as a convenience only. The inclusion of such does not constitute an obligation on Optimum Installer to provide such notes, notices and warnings in other places or features of the Optimum Installer Services.

Section 21. Construction.

If any part of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties hereto, and the remaining portions shall remain in full force and effect.

Section 22. Assignment.

Optimum Installer reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under this Agreement to a parent, subsidiary, affiliate, successor thereof or to any third party whatsoever, without notifying you or receiving your consent. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement.

Section 23. Amendments and Modifications.

Optimum Installer reserves the right, in its sole and absolute discretion, to change, alter, modify, amend or otherwise revise, from time to time, all or any portion of the Terms of Service, with or without a release of new Services, including without limitation new Software. Your continued use of the Services following a notice of change to the Terms of Service has been provided in accordance with Section 21 hereof will be deemed to be your consent to and agreement with any and all such changes, alterations, modification, and/or amendments and they will thereafter be deemed a part of the Terms of Service without further notice to you. Subject to the foregoing, you further agree to be bound by the provisions of the license agreement available on the Optimum Installer website at www.optimuminstaller.com/legal/terms, if such license is marked with a more recent date than that on the license agreement that accompanies your Software.

Section 24. Survival.

The provisions of this Agreement addressing usage restrictions, disclaimers of representations and warranties, intellectual property rights and obligations, indemnity obligations, Paid Services, and governing law shall survive the termination of this Agreement for any reason, your use of all or a portion of the Services and your use of or access to Paid Services.

Section 25. Governing Law

This Agreement shall be governed by, interpreted and enforced in all respects under the laws of the State of Missouri, USA as applicable to contracts to be performed entirely within the State of Missouri, USA. Any litigation arising out of this Agreement including any claim involving Optimum Installer or its affiliates, parents, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

Section 26. Export Control.

You agree to abide by U.S. and other applicable export control laws and not to export, re-export or otherwise transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws or to any person to whom exports, re-exports or transfers are prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Optimum Installer any data that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.

Section 27. Headings.

The headings and captions used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

Section 28. References to Optimum Installer.

Any reference made in this Agreement to “Optimum Installer” shall be deemed to have been made to Optimum Installer, and any subsidiaries, successors, assignees, and affiliates, as well as any company that controls Optimum Installer, directly or indirectly, and any other subsidiary of that controlling company.

Section 29. Violations

If you believe there have been any violations of this Agreement or the Terms of Service in general, whether by you or another, you agree to report it to legal@optimuminstaller.com as soon as possible.

Section 30. Miscellaneous

These Terms of Service along with any another notices, policies, procedures, and terms and conditions on our Site contain the entire understanding with respect to your use of our Site and our Services. You and we are independent contractors and nothing in these Terms of Service creates a partnership, joint venture, employment, or agency relationship. You may not assign these Terms of Service or any rights or obligations herein without our prior written consent and any such assignment or attempt thereat will be null and void. No purported waiver of any provision of these Terms of Service by us will be effective unless in a writing signed by us. If any provision of these Terms of Service for any reason shall be declared void, illegal, invalid, or unenforceable in whole or in part, such provision will be severable from all other provisions herein and will not affect or impair the validity or enforceability of any other provision of these Terms of Service; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provisions below and, if such prohibition is found to be unenforceable, the arbitration provisions (and only the arbitration provisions) shall be null and void. The failure by us to enforce any provision of these Terms of Service will not be deemed a waiver of such provision or any other provision.

Section 31. ARBITRATION

This section applies to any dispute EXCEPT IT DOESN'T INCLUDE A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, Optimum Installer’s, OR EITHER OF OUR LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The terms “complaint” and “dispute” mean any dispute, action, complaint, or other controversy between you and Optimum Installer concerning the Services or this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law. We hope that any disputes that you have relating to our Site or our Services can be resolved by contacting Optimum Installer’s customer service at legal@optimuminstaller.com. If, however, we are unable to resolve any complaint or dispute informally, any complaint or dispute arising out of, relating to, or in connection with these Terms of Service (or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate) and the Services themselves shall only and exclusively be resolved by submission to mandatory, final and binding arbitration by the American Arbitration Association or its successor ("AAA"). If AAA ceases to provide arbitration service, then the term "AAA" shall mean and refer to J.A.M.S. The arbitration shall only be conducted in Kansas City, MO before a single arbitrator, in the English language. The arbitrator shall be a retired judge or justice, or a duly licensed attorney with no less than 15 years of experience in arbitrating commercial disputes involving the retail sale of goods and services. If the parties cannot agree upon an arbitrator within ten days of the filing of the demand for arbitration, the AAA shall select the arbitrator. Either party may commence arbitration by filing a written demand for arbitration with AAA and delivering a copy of such demand to the other party. The arbitration shall be held under the Commercial Arbitration Rules with Expedited Procedures of the AAA then in effect (or the J.A.M.S. Streamlined Arbitration Rules and Procedures in effect at the time the demand for arbitration is filed). Unless both you and we agree in writing otherwise, the arbitrator may not consolidate more than one person's claims or preside over any form of a representative or class proceeding. The arbitrator's determination shall be set forth in a brief, written statement reasonably explaining the disposition of the dispute and the amount of any award. The parties shall split the costs of all invoices issued by the AAA to conduct the arbitration but shall otherwise bear their own costs. Notwithstanding anything to the contrary herein, either party may seek injunctive relief in a court of competent jurisdiction to prevent irreparable harm from occurring prior to the selection of the arbitrator.

ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL TAKE PLACE ON AN INDIVIDUAL BASIS AND YOU AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY AGREEING TO ARBITRATE, YOU EXPRESSLY WAIVE ANY RIGHT TO A COURT OR JURY TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION.

CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis.

For any non-frivolous claim that is less than $10,000, we will pay the filing fee for the arbitration; provided, however, that if the arbitrator finds that your claim or relief sought is frivolous or brought for an improper purpose you shall promptly reimburse us all amounts paid by us that are your obligation to pay under the AAA rules. If the arbitrator grants an award in your favor based on the merits of your claim and such award is greater than the value of Optimum Installer's last written settlement offer to you before an arbitrator was selected, then Optimum Installer will pay you up to twice the amount of the award up to a maximum aggregate amount of $10,000.

If we make any amendment to the arbitration provisions of this Section 31, you may reject any such amendment by sending us written notice to the contact address provided below within thirty (30) days after such amendment. By rejecting any such amendment, you agree that you will arbitrate any dispute in accordance with this Section 31.

CONTACT

Optimum Installer
Attention: Counsel
21301 S Tamiami Trail
Suite 320 #108
Estero, FL 33928

Section 32. Comments

If you have comments about the Software or the Services, you may contact us at legal@optimuminstaller.com or at Optimum Installer, 21301 S Tamiami Trail
Suite 320 #108, Estero, FL 33928. You understand and agree that any comments you provide may be used by us in our sole and absolute discretion without any compensation of any kind.