1. Your relationship with Otium
1.1 Your use of Otium’s products, software, services and
web sites (referred to collectively as the “Services” in
this document and excluding any services provided to you
by Otium under a separate written agreement) is subject
to the terms of a legal agreement between you and Otium.
“Otium” means The OtiumGroup, LLC, whose principal place
of business is at 2033 North Milwaukee Ave, Suite 321,
Riverwoods, Illinois, 60015, United States. This document
explains how the agreement is made up, and sets out some
of the terms of that agreement.
1.2 Unless otherwise agreed to in writing with Otium, your
agreement with Otium will always include, at a minimum,
the terms and conditions set out in this document. These
are referred to below as the “Universal Terms”.
1.3 Your agreement with Otium will also include the terms
of any Legal Notices applicable to the Services, in addition
to the Universal Terms. All of these are referred to below
as the “Additional Terms”. Where Additional Terms apply
to a Service, these will be accessible for you to read
either within, or through your use of, that Service.
1.4 The Universal Terms, together with the Additional Terms,
form a legally binding agreement between you and Otium
in relation to your use of the Services. It is important
that you take the time to read them carefully. Collectively,
this legal agreement is referred to below as the “Terms”.
1.5 If there is any contradiction between what the Additional
Terms say and what the Universal Terms say, then the Additional
Terms shall take precedence in relation to that Service.
2. Accepting the Terms
2.1 In order to use the Services, you must first agree
to the Terms. You may not use the Services if you do not
accept the Terms.
2.2 You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this
option is made available to you by Otium in the user interface
for any Service; or
(B) by actually using the Services. In this case, you understand
and agree that Otium will treat your use of the Services
as acceptance of the Terms from that point onwards.
2.3 You may not use the Services and may not accept the
Terms if (a) you are not of legal age to form a binding
contract with Otium, or (b) you are a person barred from
receiving the Services under the laws of the United States
or other countries including the country in which you are
resident or from which you use the Services.
2.4 Before you continue, you should print off or save a
local copy of the Universal Terms for your records.
3. Language of the Terms
3.1 Where Otium has provided you with a translation of
the English language version of the Terms, then you agree
that the translation is provided for your convenience only
and that the English language versions of the Terms will
govern your relationship with Otium.
3.2 If there is any contradiction between what the English
language version of the Terms says and what a translation
says, then the English language version shall take precedence.
4. Provision of the Services by Otium
4.1 Otium may have subsidiaries and affiliated legal entities
around the world (“Subsidiaries and Affiliates”). Sometimes,
these companies will be providing the Services to you on
behalf of Otium itself. You acknowledge and agree that
Subsidiaries and Affiliates will be entitled to provide
the Services to you.
4.2 Otium is constantly innovating in order to provide
the best possible experience for its users. You acknowledge
and agree that the form and nature of the Services which
Otium provides may change from time to time without prior
notice to you.
4.3 As part of this continuing innovation, you acknowledge
and agree that Otium may stop (permanently or temporarily)
providing the Services (or any features within the Services)
to you or to users generally at Otium’s sole discretion,
without prior notice to you. You may stop using the Services
at any time. You do not need to specifically inform Otium
when you stop using the Services.
4.4 You acknowledge and agree that if Otium disables access
to your account, you may be prevented from accessing the
Services, your account details or any files or other content
which is contained in your account.
4.5 You acknowledge and agree that while Otium may not
currently have set a fixed upper limit on the number of
transmissions you may send or receive through the Services
or on the amount of storage space used for the provision
of any Service, such fixed upper limits may be set by Otium
at any time, at Otium’s discretion.
5. Use of the Services by you
5.1 In order to access certain Services, you may be required
to provide information about yourself (such as identification
or contact details) as part of the registration process
for the Service, or as part of your continued use of the
Services. You agree that any registration information you
give to Otium will always be accurate, correct and up to
date.
5.2 You agree to use the Services only for purposes that
are permitted by (a) the Terms and (b) any applicable law,
regulation or generally accepted practices or guidelines
in the relevant jurisdictions (including any laws regarding
the export of data or software to and from the United States
or other relevant countries).
5.3 You agree not to access (or attempt to access) any
of the Services by any means other than through the interface
that is provided by Otium, unless you have been specifically
allowed to do so in a separate agreement with Otium. You
specifically agree not to access (or attempt to access)
any of the Services through any automated means (including
use of scripts or web crawlers) and shall ensure that you
comply with the instructions set out in any robots.txt
file present on the Services.
5.4 You agree that you will not engage in any activity
that interferes with or disrupts the Services (or the servers
and networks which are connected to the Services).
5.5 Unless you have been specifically permitted to do so
in a separate agreement with Otium, you agree that you
will not reproduce, duplicate, copy, sell, trade or resell
the Services for any purpose.
5.6 You agree that you are solely responsible for (and
that Otium has no responsibility to you or to any third
party for) any breach of your obligations under the Terms
and for the consequences (including any loss or damage
which Otium may suffer) of any such breach.
6. Your passwords and account security
6.1 You agree and understand that you are responsible for
maintaining the confidentiality of passwords associated
with any account you use to access the Services.
6.2 Accordingly, you agree that you will be solely responsible
to Otium for all activities that occur under your account.
6.3 If you become aware of any unauthorized use of your
password or of your account, you agree to notify Otium
immediately at customerservice@TheOtiumGroup.com.
7. Privacy and your personal information
7.1 For information about Otium’s data protection practices,
please read Otium’s privacy policy here.
This policy explains how Otium treats your personal information,
and protects your privacy, when you use the Services.
7.2 You agree to the use of your data in accordance with
Otium’s privacy policies.
8. Content in the Services
8.1 You understand that all information (such as data files,
written text, computer software, music, audio files or
other sounds, photographs, videos or other images) which
you may have access to as part of, or through your use
of, the Services are the sole responsibility of the person
from which such content originated. All such information
is referred to below as the “Content”.
8.2 You should be aware that Content presented to you as
part of the Services, including but not limited to advertisements
in the Services and sponsored Content within the Services
may be protected by intellectual property rights which
are owned by the sponsors or advertisers who provide that
Content to Otium (or by other persons or companies on their
behalf). You may not modify, rent, lease, loan, sell, distribute
or create derivative works based on this Content (either
in whole or in part) unless you have been specifically
told that you may do so by Otium or by the owners of that
Content, in a separate agreement.
8.3 Otium reserves the right (but shall have no obligation)
to pre-screen, review, flag, filter, modify, refuse or
remove any or all Content from any Service. For some of
the Services, Otium may provide tools to filter out explicit
sexual content. In addition, there are commercially available
services and software to limit access to material that
you may find objectionable.
8.4 You understand that by using the Services you may be
exposed to Content that you may find offensive, indecent
or objectionable and that, in this respect, you use the
Services at your own risk.
8.5 You agree that you are solely responsible for (and
that Otium has no responsibility to you or to any third
party for) any Content that you create, transmit or display
while using the Services and for the consequences of your
actions (including any loss or damage which Otium may suffer)
by doing so.
9. Proprietary rights
9.1 You acknowledge and agree that Otium (or Otium’s licensors)
own all legal right, title and interest in and to the Services,
including any intellectual property rights which subsist
in the Services (whether those rights happen to be registered
or not, and wherever in the world those rights may exist).
You further acknowledge that the Services may contain information
which is designated confidential by Otium and that you
shall not disclose such information without Otium’s prior
written consent.
9.2 Unless you have agreed otherwise in writing with Otium,
nothing in the Terms gives you a right to use any of Otium’s
trade names, trademarks, service marks, logos, domain names,
and other distinctive brand features. For more information
on the Otium Brand Use policy at www.TheOtiumGroup.com/trademarks.html
9.3 If you have been given an explicit right to use any
of these brand features in a separate written agreement
with Otium, then you agree that your use of such features
shall be in compliance with that agreement, any applicable
provisions of the Terms, and Otium's brand feature use
guidelines as updated from time to time. These guidelines
can be viewed online at www.TheOtiumGroup.com/trademarks.html or
the URL designated by Otium at the time the agreement was
executed.
9.4 Other than the limited license set forth in Section
11, Otium acknowledges and agrees that it obtains no right,
title or interest from you (or your licensors) under these
Terms in or to any Content that you submit, post, transmit
or display on, or through, the Services, including any
intellectual property rights which subsist in that Content
(whether those rights happen to be registered or not, and
wherever in the world those rights may exist). Unless you
have agreed otherwise in writing with Otium, you agree
that you are responsible for protecting and enforcing those
rights and that Otium has no obligation to do so on your
behalf.
9.5 You agree that you shall not remove, obscure, or alter
any proprietary rights notices (including copyright and
trade mark notices) which may be affixed to or contained
within the Services.
9.6 Unless you have been expressly authorized to do so
in writing by Otium, you agree that in using the Services,
you will not use any trade mark, service mark, trade name,
logo of any company or organization in a way that is likely
or intended to cause confusion about the owner or authorized
user of such marks, names or logos.
10. License from Otium
10.1 For Services that are not subscription based, Otium
gives you a personal, worldwide, royalty-free, non-assignable
and non-exclusive license to use the software provided
to you by Otium as part of the Services as provided to
you by Otium (referred to as the “Software” below). This
license is for the sole purpose of enabling you to use
and enjoy the benefit of the Services as provided by Otium,
in the manner permitted by the Terms. For subscription
based Services, the terms of the license granted by Otium
will be controlled by the Subscription Agreement.
10.2 You may not (and you may not permit anyone else to)
copy, modify, create a derivative work of, reverse engineer,
decompile or otherwise attempt to extract the source code
of the Software or any part thereof, unless this is expressly
permitted or required by law, or unless you have been specifically
told that you may do so by Otium, in writing.
10.3 Unless Otium has given you specific written permission
to do so, you may not assign (or grant a sub-license of)
your rights to use the Software, grant a security interest
in or over your rights to use the Software, or otherwise
transfer any part of your rights to use the Software.
11. Content license from you
11.1 You retain copyright and any other rights you already
hold in Content which you submit, post or display on or
through, the Services. By submitting, posting or displaying
the content you give Otium a perpetual, irrevocable, worldwide,
royalty-free, and non-exclusive license to reproduce, adapt,
modify, translate, publish, publicly perform, publicly
display and distribute any Content which you submit, post
or display on or through, the Services. This license is
for the sole purpose of enabling Otium to display, distribute
and promote the Services and may be revoked for certain
Services as defined in the Additional Terms of those Services.
11.2 You agree that this license includes a right for Otium
to make such Content available to other companies, organizations
or individuals with whom Otium has relationships for the
provision of syndicated services, and to use such Content
in connection with the provision of those services.
11.3 You understand that Otium, in performing the required
technical steps to provide the Services to our users, may
(a) transmit or distribute your Content over various public
networks and in various media; and (b) make such changes
to your Content as are necessary to conform and adapt that
Content to the technical requirements of connecting networks,
devices, services or media. You agree that this license
shall permit Otium to take these actions.
11.4 You confirm and warrant to Otium that you have all
the rights, power and authority necessary to grant the
above license.
12. Software updates
12.1 The Software which you use may automatically download
and install updates from time to time from Otium. These
updates are designed to improve, enhance and further develop
the Services and may take the form of bug fixes, enhanced
functions, new software modules and completely new versions.
You agree to receive such updates (and permit Otium to
deliver these to you) as part of your use of the Services.
13. Ending your relationship with Otium
13.1 The Terms will continue to apply until terminated
by either you or Otium as set out below.
13.2 If you want to terminate your legal agreement with
Otium, you may do so by (a) notifying Otium at any time
and (b) closing your accounts for all of the Services which
you use, where Otium has made this option available to
you. Your notice should be sent, in writing, to Otium’s
address which is set out at the beginning of these Terms.
13.3 Otium may at any time, terminate its legal agreement
with you if:
(A) you have breached any provision of the Terms (or have
acted in manner which clearly shows that you do not intend
to, or are unable to comply with the provisions of the
Terms); or
(B) Otium is required to do so by law (for example, where
the provision of the Services to you is, or becomes, unlawful);
or
(C) the partner with whom Otium offered the Services to
you has terminated its relationship with Otium or ceased
to offer the Services to you; or
(D) Otium is transitioning to no longer providing the Services
to users in the country in which you are resident or from
which you use the service; or
(E) the provision of the Services to you by Otium is, in
Otium’s opinion, no longer commercially viable.
13.4 Nothing in this Section shall affect Otium’s rights
regarding provision of Services under Section 4 of the
Terms.
13.5 When these Terms come to an end, all of the legal
rights, obligations and liabilities that you and Otium
have benefited from, been subject to (or which have accrued
over time whilst the Terms have been in force) or which
are expressed to continue indefinitely, shall be unaffected
by this cessation, and the provisions of paragraph 20.7
shall continue to apply to such rights, obligations and
liabilities indefinitely.
14. EXCLUSION OF WARRANTIES
14.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 14 AND
15, SHALL EXCLUDE OR LIMIT OTIUM’S WARRANTY OR LIABILITY
FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED
BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION
OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY
NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS,
OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY
THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL
APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM
EXTENT PERMITTED BY LAW.
14.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF
THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES
ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
14.3 IN PARTICULAR, OTIUM, ITS SUBSIDIARIES AND AFFILIATES,
AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR
USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY
SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE
CORRECTED.
14.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION
AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS
OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
14.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM OTIUM OR THROUGH OR FROM THE SERVICES
SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
14.6 OTIUM FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND
CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
15. LIMITATION OF LIABILITY
15.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 14.1 ABOVE,
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OTIUM, ITS SUBSIDIARIES
AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO
YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL
OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER
CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE,
BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED
DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS
REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING
BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY
OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY
RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER
OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH OTIUM MAY MAKE TO THE SERVICES,
OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION
OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE,
ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR
TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE OTIUM WITH ACCURATE ACCOUNT
INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS
SECURE AND CONFIDENTIAL;
15.2 THE LIMITATIONS ON OTIUM’S LIABILITY TO YOU IN PARAGRAPH
15.1 ABOVE SHALL APPLY WHETHER OR NOT OTIUM HAS BEEN ADVISED
OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY
SUCH LOSSES ARISING.
16. Copyright and trade mark policies
16.1 It is Otium’s policy to respond to notices of alleged
copyright infringement that comply with applicable international
intellectual property law (including, in the United States,
the Digital Millennium Copyright Act) and to terminating
the accounts of repeat infringers. Details of Otium’s policy
can be found here.
16.2 Otium operates a trade mark complaints procedure in
respect of Otium’s advertising business, details of which
can be found here.
17. Advertisements
17.1 Some of the Services are supported by advertising
revenue and may display advertisements and promotions.
These advertisements may be targeted to the content of
information stored on the Services, queries made through
the Services or other information.
17.2 The manner, mode and extent of advertising by Otium
on the Services are subject to change without specific
notice to you.
17.3 In consideration for Otium granting you access to
and use of the Services, you agree that Otium may place
such advertising on the Services.
18. Other content
18.1 The Services may include hyperlinks to other web sites
or content or resources. Otium may have no control over
any web sites or resources which are provided by companies
or persons other than Otium.
18.2 You acknowledge and agree that Otium is not responsible
for the availability of any such external sites or resources,
and does not endorse any advertising, products or other
materials on or available from such web sites or resources.
18.3 You acknowledge and agree that Otium is not liable
for any loss or damage which may be incurred by you as
a result of the availability of those external sites or
resources, or as a result of any reliance placed by you
on the completeness, accuracy or existence of any advertising,
products or other materials on, or available from, such
web sites or resources.
19. Changes to the Terms
19.1 Otium may make changes to the Universal Terms or Additional
Terms from time to time. When these changes are made, Otium
will make a new copy of the Universal Terms available here and
any new Additional Terms will be made available to you
from within, or through, the affected Services.
19.2 You understand and agree that if you use the Services
after the date on which the Universal Terms or Additional
Terms have changed, Otium will treat your use as acceptance
of the updated Universal Terms or Additional Terms.
20. General legal terms
20.1 Sometimes when you use the Services, you may (as a
result of, or through your use of the Services) use a service
or download a piece of software, or purchase goods, which
are provided by another person or company. Your use of
these other services, software or goods may be subject
to separate terms between you and the company or person
concerned. If so, the Terms do not affect your legal relationship
with these other companies or individuals.
20.2 The Terms constitute the whole legal agreement between
you and Otium and govern your use of the Services (but
excluding any services which Otium may provide to you under
a separate written agreement), and completely replace any
prior agreements between you and Otium in relation to the
Services, except those provided in the OtiumOutfitters
Website Development and User Agreement. Independent retailers
using the Otium site for e-commerce purposes shall be subject
to both these Terms of Use and those terms and conditions
provided in the OtiumOutfitters Website Development and
User Agreement. In the event any provisions of this Agreement
are deemed to be not consistent with all terms and conditions
of the OtiumOutfitters Website Development and User Agreement,
then the terms of the OtiumOutfitters Website Development
and User Agreement shall control.
20.3 You agree that Otium may provide you with notices,
including those regarding changes to the Terms, by email,
regular mail, or postings on the Services.
20.4 You agree that if Otium does not exercise or enforce
any legal right or remedy which is contained in the Terms
(or which Otium has the benefit of under any applicable
law), this will not be taken to be a formal waiver of Otium’s
rights and that those rights or remedies will still be
available to Otium.
20.5 If any court of law, having the jurisdiction to decide
on this matter, rules that any provision of these Terms
is invalid, then that provision will be removed from the
Terms without affecting the rest of the Terms. The remaining
provisions of the Terms will continue to be valid and enforceable.
20.6 You acknowledge and agree that each member of the
group of companies of which Otium is the parent shall be
third party beneficiaries to the Terms and that such other
companies shall be entitled to directly enforce, and rely
upon, any provision of the Terms which confers a benefit
on (or rights in favor of) them. Other than this, no other
person or company shall be third party beneficiaries to
the Terms.
20.7 The Terms, and your relationship with Otium under
the Terms, shall be governed by the laws of the State of
Illinois without regard to its conflict of laws provisions.
You and Otium agree to submit to the exclusive jurisdiction
of the courts located within the Lake County, Illinois
to resolve any legal matter arising from the Terms. Notwithstanding
this, you agree that Otium shall still be allowed to apply
for injunctive remedies (or an equivalent type of urgent
legal relief) in any jurisdiction.
July 1, 2009
I ACKNOWLEDGE THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS
CONTAINED ABOVE.
