Terms of Service
Terms of Service (TOS) Effective Date of this version: 21 December 2018.
Want to contact us about this TOS? Legal issues should be addressed to firstname.lastname@example.org
1. Overview and Important Definitions
A. This Terms of Service ("TOS") is a legally binding contract between High Voltage SEO Pty Ltd. (T/A PageOptimizer Pro) and you, as a user of or subscriber to PageOptimizer Pro sites or services.
B. PageOptimizer Pro offers businesses and individuals access to resources for search engine optimization, including, without limitation, software as a service available on a subscription basis, website profile services, industry surveys and data study publishing (any or all are “Services”).
C. PageOptimizer Pro Services are available from PageOptimizer Pro web domains, including, without limitation, pageoptimizer.pro ("Sites").
D. TOS Acceptance and Agreement; Users and Subscribers.
(1.) By accessing or using any Sites or Services, or by clicking or checking a box indicating “I agree,” “I accept,” or any similar expression of agreement while purchasing or obtaining access to any portion of any Sites or Services, you agree to be legally bound by this TOS. (Please print a copy of this TOS for your records.) If you do not agree to the TOS, you are not authorized to use and you must cease using any Sites or Services.
(2.) You may access portions of any Sites or Services with a free account as a user ("User"). While access to certain other portions of the Sites and selected features of the Services is free, PageOptimizer Pro may charge fees for features and benefits associated with any Sites or Services at any time. Any User who pays to access or use parts of the Sites or Services is a "Subscriber" in this TOS. References to the terms “you” or “your” in the TOS refer to Users or Subscribers, as applicable.
(3.) If you accept this TOS on behalf of any other person(s) or organization(s), then you represent to PageOptimizer Pro that you are legally authorized to do so, and “you” or “your” therefore also includes those other person(s) or organization(s).
E. PageOptimizer Pro may revise and update this TOS at any time for any reason in its sole and absolute discretion, effective immediately on posting the same to the Sites. The TOS will indicate at the beginning (top of the page) the date on which the current TOS was last revised and effective. It is your responsibility to check the then-current TOS for any changes. YOU AGREE THAT THE MOST RECENT VERSION OF THIS TOS LEGALLY BINDS YOU FOR ANY OF YOUR ACCESS OR USE OF THE SITES AND ANY SERVICES, AND YOU FURTHER AGREE THAT THE MOST RECENT TOS VERSION SUPERSEDES AND REPLACES THE PRIOR VERSION AND BINDS YOU FOR THE ENTIRETY OF ANY UNEXPIRED AND ACTIVE TERMS OF YOUR SUBSCRIPTIONS TO ANY SERVICES.
F. If you enter into a separate written agreement with PageOptimizer Pro, executed physically or digitally (e.g. DocuSign®) by both you and PageOptimizer Pro, for you to access or use any Sites or Services (“Other PageOptimizer Pro Agreement”), to the extent that the terms of any Other PageOptimizer Pro Agreement conflict with the terms of this TOS, the conflicting terms of such Other PageOptimizer Pro Agreement will override the conflicting terms of this TOS unless the Other PageOptimizer Pro Agreement states the contrary.
2. Terms and Conditions Governing API Usage
A. As a Service, PageOptimizer Pro may provide application program interfaces and accompanying software code and documentation (any or all are “PageOptimizer Proscape API”) to access and use proprietary PageOptimizer Pro information and data about URLs (“PageOptimizer Pro Data”).
B. If PageOptimizer Pro provides you any API via a secret access key, subject to this TOS, then PageOptimizer Pro grants you a worldwide, limited, non-exclusive, non-transferable license to make a reasonable number of copies of and use the PageOptimizer Proscape API to access PageOptimizer Pro Data to use other Services. If you use or publicly display any PageOptimizer Pro Data accessed with any PageOptimizer Proscape API, you also will comply with any PageOptimizer Pro link and attribution guidelines on the Sites from time to time.
C. You may not resell or redistribute any proprietary PageOptimizer Pro API that PageOptimizer Pro licensed to you or any PageOptimizer Pro Data via your own API or offer it to any third parties.
D. PageOptimizer Pro reserves the right to suspend or terminate access to any PageOptimizer Proscape API at any time and for any reason, with or without cause. If your access to any PageOptimizer Proscape API is suspended or terminated, you have no rights associated with such PageOptimizer Proscape API and you acknowledge that you will not be entitled to any refund or other compensation whatsoever.
3. Terms and Conditions Governing Software as a Service Use and Subscriptions
Certain Services include PageOptimizer Pro proprietary software as a service; if you are a User of or Subscriber to any PageOptimizer Pro Services, then you are also subject to the following specific terms and conditions.
A. Terms and Conditions Governing Subscriptions to all PageOptimizer Pro Software as a Service
These Services include subscriptions to PageOptimizer Pro are subject to the TOS and the following obligations specific to PageOptimizer Pro and such other software as a service offerings by PageOptimizer Pro.
(1.) Subscription Payment. Subscribers must agree to the payment terms presented at the time you sign up for any Services. You are responsible for acting prior to renewal if you do not want to renew automatically. You may not receive notice of your renewal after subscribing, and you must visit your Profile page to find out when your subscription renews. Subscriptions recur either monthly or annually in most cases, depending on the renewal term you choose on signup. You must ensure that the credit card information used for your account or subscription is current and accurate, and that you are authorized to use that credit card. PageOptimizer Pro may implement fraud-protection measures anytime including, without limitation, temporarily charging small amounts to validate your credit card and authorization.
(2.) Subscription Cancellation. For security, an email or phone call to PageOptimizer Pro is not sufficient to cancel your Services subscription. You may cancel at any time by selecting the cancel button on your Profile page. Cancellation does not entitle you to any refund whatsoever. You will continue to have access to the Sites and Services you have paid for until the end of your subscription term, but will lose access if the subscription is not in good standing.
(3.) Remaining credits on cancelled subscription plans will not expire, they will remain available in your account. This policy is subject to change without written notice.
(4.) Remaining credits for ongoing PageOptimizer Pro active subscriptions will not roll over to following month but rather be forfeited on the final calendar day of billing period unless subscription is cancelled as per item 3.A (3.).
(5.) No Refunds. PageOptimizer Pro will not provide you any refunds at any time. If you cancel your subscription, PageOptimizer Pro is not obligated to refund fees for any portion of your subscription term. If you choose to downgrade your subscription during your subscription term, you may be entitled to a pay a lower, prorated amount as of the date of renewal, but you are not entitled to any refund at any time.
(6.) Multiple Subscriptions. Each subscription has a credit card associated with it. If a subscription is suspended for inability to process that credit card, and you subscribe to a second PageOptimizer Pro Service while that first Service is suspended (e.g. changing the credit card for the new subscription) but before the original subscription is cancelled (currently 18 days, subject to change), PageOptimizer Pro may use the valid payment credit card for the second subscription to reinitiate the suspended Service.
4. Terms and Conditions Governing All Users of and Subscribers to Sites or Services
A. The Services are available only to Users and Subscribers who:
- Are human (not bots, except for certain authorized API users) and with minimum ages of 13 years old for Users and 18 years old for Subscribers;
- Submit and then maintain truthful and accurate account information;
- Do not impersonate any other person or entity or otherwise misrepresent their identity in a profile or elsewhere on the Sites;
- Have a valid email address; and
- Do not to authorize third parties unaffiliated through an employer-employee or entity ownership relationship to use their account, profile, or messages or otherwise resell the Services to multiple unaffiliated persons or parties (e.g. “group buys” or “buyers’ clubs”).
B. You agree that you have or will enter into agreements with your individual users who access any Sites or Services on your behalf that protect PageOptimizer Pro, and any PageOptimizer Pro Content, Sites, or Services as much as this TOS.
C. If PageOptimizer Pro, through any Sites, Services, or otherwise, provides you user authentication and access tools (i.e., user name, password, access keys, etc.) for secure access to any Site or Services, you agree to keep that account access information protected, secure, and confidential, and not share it with others in any way that breaches this TOS. You agree that PageOptimizer Pro in its sole and absolute discretion may block you from any secure and restricted parts of any Sites or Services. You also agree to notify PageOptimizer Pro immediately of any unauthorized access to or use of secure and restricted parts of any Sites or Services that you (including but not limited to any of your users) know or should reasonably know about.
D. You agree that your rights in a subscription or use of any paid Services (including, for example, the ability to change a password associated with a PageOptimizer Pro account) may depend on demonstrating that you have paid for the subscription to any applicable Services or Sites.
E. You acknowledge that if you sign up for any Services and pay via credit card, and PageOptimizer Pro cannot charge your credit card at renewal, PageOptimizer Pro may cancel your subscription and you may lose access to the Services and any data associated with your subscription.
F. While some Services may be paid for via invoice pursuant to an Other PageOptimizer Pro Agreement, PageOptimizer Pro may quote additional fees for invoiced accounts. If PageOptimizer Pro has entered into an invoicing relationship with you, the following terms apply unless superseded by an Other PageOptimizer Pro Agreement: You agree to pay all undisputed invoices within 30 days. You agree that PageOptimizer Pro may charge interest of 1.5% per month for past due invoices, or the highest rate permitted by law, and you are liable for reasonable attorney fees and collection costs arising from PageOptimizer Pro's efforts to collect on past due amounts. If you fail to pay an invoice, PageOptimizer Pro reserves the right to cancel your subscription and access to any Sites or Services, and any data associated with your subscription or the Services.
G. Taxes. The price, fees, and other amounts payable to PageOptimizer Pro under this TOS do not include any sales, use, or other similar taxes assessed or imposed by any governmental authority. With regard to such amounts, you will pay or reimburse PageOptimizer Pro for all such charges as invoiced or provide certificates or other evidence of exemption.
H. You acknowledge that portions of the Sites and Services are publicly available or available to other Users and may be accessible by syndication programs (including data feed tools), search engines, metasearch tools, crawlers, metacrawlers, and other similar programs.
5. User Obligations Regarding User-Generated Content
You assume the following obligations with respect to any information, profiles, data, text, links, articles, software, photographs, graphics, video, music, sound, messages, or other materials that a you upload, publish, or display on or through any Sites or Services, whether publicly posted or privately transmitted (“User-Generated Content”):
- You assume legal responsibility for all your User-Generated Content.
- You agree that no proprietary rights including but not limited to copyright, trademark, trade secret, publicity or privacy rights, or any other intellectual property rights are being violated by your posting, transmission or sharing of any User-Generated Content via any Sites or Services.
- You agree not to post, transmit, or share User-Generated Content on any Sites or Services that you:
- Lack authority or permission to post, transmit, or share, or
- That violates in any way the rights of other persons or solicits, encourages, or promotes illegal activities, including but not limited to activities that threaten, abuse in any way, harass, defame, libel, disparage, invade the privacy or publicity rights of other persons or that are vulgar, obscene, bigoted or hateful, profane, scandalous, obscene.
6. No PageOptimizer Pro Responsibility for User-Generated Content
PageOptimizer Pro assumes no obligations to screen and does not routinely pre-screen any User-Generated Content that you upload, publish, or display on or through any Sites or Services. PageOptimizer Pro does not guarantee the accuracy, integrity, appropriateness, quality, or validity of any User-Generated Content. User Generated Content does not necessarily represent the views or opinions of PageOptimizer Pro and under no circumstances whatsoever will PageOptimizer Pro be liable for any User-Generated Content, including without limitation liability related to any loss or damage of any kind incurred from using any User-Generated Content uploaded, published, or displayed on or through any Sites or Services. Only you are solely responsible (at your own expense) for creating backup copies and replacing any of your User-Generated Content. While you agree that PageOptimizer Pro is not obligated to, PageOptimizer Pro may remove any User-Generated Content at any time at its sole discretion, including User-Generated Content that in PageOptimizer Pro’s sole judgment violates this TOS or is offensive, illegal, or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. PageOptimizer Pro assumes no obligation to maintain or store any User-Generated Content. PageOptimizer Pro may delete, modify, or restrict the display of User-Generated Content at any time for any reason, including but not limited to a change in Subscriber account level, Services cancellation, violation of the TOS, or violation of the PageOptimizer Pro Community Etiquette; once deleted, User-Generated Content may not be retrieved.
7. PageOptimizer Pro's Permitted Use of User-Generated Content and User Data
A. PageOptimizer Pro does not claim ownership of User-Generated Content. Subject to the rights granted to PageOptimizer Pro in this TOS, you retain full ownership of all of User-Generated Content to the extent you would otherwise have intellectual property or other proprietary rights associated with it.
B. You authorize PageOptimizer Pro to use and copy any User-Generated Content that you upload, publish, or display on or through any Sites or Services as PageOptimizer Pro deems necessary to facilitate the posting and storage of such User-Generated Content.
C. You further authorize PageOptimizer Pro to anonymize and aggregate User-Generated Content and any other data you share with PageOptimizer Pro (“User Data”), including data associated with your Google Analytics and social media profiles, and by way of example and not limitation, to provide current or future services and for benchmarking, research and development, data products, or other marketing purposes. By uploading, publishing, or displaying User Data on or through any Sites or Services (including authorization to access any third-party account or profile), you grant PageOptimizer Pro, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive license (with the right to sublicense) to use anonymized and aggregated User-Generated Content and User Data, in all present and future media, and in any manner relating to PageOptimizer Pro’s business including to provide any Sites or Services.
D. For any User-Generated Content that you upload, publish, or display on or through any community portions of the Sites ("Interactive Content"), including without limitation your User Profile, the PageOptimizer Pro Blog, Q&A service, and any future PageOptimizer Pro Sites or Services that are designed to be viewed by the public or other Subscribers, you grant to PageOptimizer Pro, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable license (with the right to sublicense) to use, reproduce, translate, alter, publicly perform, publicly display, modify, adapt, publish, excerpt (in whole or in part), and distribute such Interactive Content, in whole or in part, in all present and future media and in any manner relating to PageOptimizer Pro’s business (including, without limitation, on the sites of our affiliates, partners, and others with whom PageOptimizer Pro may have business relationships relating to any Sites or Services). You further agree that PageOptimizer Pro is free to use any ideas, know-how, concepts, techniques, or other materials implied by Interactive Content. You acknowledge that PageOptimizer Pro may retain archived copies of such Interactive Content. Subject to the preceding, you may remove Interactive Content from the Sites at any time.
E. Except for the rights to access and use the Services expressly granted to you by this TOS, PageOptimizer Pro retains all right, title, and interest in and to any Sites or Services, including all related intellectual property rights. Any Sites or Services are protected by applicable intellectual property laws internationally. No grant or transfer of any right, title, or interest to you shall be implied. Notwithstanding anything to the contrary, upon termination or expiration of this TOS as applicable to you, all rights and licenses granted to you under this TOS shall terminate.
8. Services Limitations; Availability
PageOptimizer Pro may limit use of any Sites or Services at its discretion, including the frequency with which you may access any Sites or Services or your ability to post User-Generated Content. PageOptimizer Pro reserves the right to modify, update, interrupt, suspend or discontinue, temporarily or permanently, all or a part of any Sites or Services without notice. You agree that PageOptimizer Pro shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any Sites or Services. You are also responsible for providing all equipment you use to access any Sites or Services.
9. User Feedback and Beta Services
A. “Feedback” means any ideas, suggestions, or comments that you provide to PageOptimizer Pro related to any Sites, Services, or any other PageOptimizer Pro technologies, products, service, or business activities (in beta, pre-release, or released versions). You agree that you have no expectation of, and PageOptimizer Pro has no obligations for, confidentiality or privacy in any Feedback. You grant PageOptimizer Pro a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish, or perform any Feedback and to make, have made, sell, offer to sell, and import any products, services, or materials existing now or in the future that include or incorporate any of your Feedback, including but not limited to any Sites or Services.
B. From time to time, PageOptimizer Pro may add new features to the Services that may be described as "beta" services or features (collectively, "Beta Features"). Beta Features will be considered part of the Sites or Services and all provisions of this TOS relating to any Sites or Services will apply to the Beta Features as well. Users acknowledge that Beta Features may be untested, non-functional, and/or partially functional features of the Sites or Services. If you use a Beta Feature, you do so at your own risk. Notwithstanding anything else in this TOS to the contrary, Beta Features are provided “AS IS” and PageOptimizer Pro disclaims any warranties associated with any Beta Feature. You assume and bear any risk that Beta Features may harm or interrupt operation of your software or hardware.
10. Services Credits
PageOptimizer Pro occasionally and in its sole discretion may offer Subscribers opportunities to earn credits toward future Services ("Service Credits"), including, for example, Service Credits for new Subscriber referrals. Service Credits may be revoked at any time and for any reason at PageOptimizer Pro's discretion, and are never redeemable for cash, exchanged, sold, or rolled into a separate account. Reasons why PageOptimizer Pro might exercise discretion and revoke and void Service Credits include but are not limited to a referred account that is not an actual person or company, is otherwise not in good standing, or was fraudulently obtained. PageOptimizer Pro in its sole discretion may also undertake other actions (such as terminating your subscription or banning you from any future referral program) for such behavior. Unused credits may expire at the discretion of PageOptimizer Pro.
11. Trademarks; Copyrights; Proprietary Rights; and Use Restrictions
A. As between you and PageOptimizer Pro, other than User-Generated Content, PageOptimizer Pro owns all right, title, and interest in any Sites or Services, including without limitation the visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, and all other elements and components of any Sites or Services ("PageOptimizer Pro Content").
B. PageOptimizer Pro owns the copyrights, trademarks, service marks, trade names, and other intellectual property and proprietary rights throughout the world associated with PageOptimizer Pro Content, the Sites, and the Services. Moreover, the term “PageOptimizer Pro” and anything on the Sites that identifies or distinguishes PageOptimizer Pro from any other goods and services are registered or unregistered trademarks of PageOptimizer Pro (the "PageOptimizer Pro Trademarks"). Except as otherwise permitted by law, you agree not to display or use in any manner the PageOptimizer Pro Trademarks without PageOptimizer Pro's prior written consent.
C. Subject to any of your rights under applicable law (e.g. as a licensee of software under applicable legislation deriving from EU Directive 2009/24/EC, if applicable), you shall not, nor shall you assist anyone else to: (1.) modify, distribute, adapt, decompile, disassemble, reverse-assemble, reverse-engineer, or prepare derivative works from any computer code or any other materials relating to PageOptimizer Pro Content or other PageOptimizer Pro technology; (2.) use, evaluate, or view PageOptimizer Pro Content for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by any Services, or to compete with PageOptimizer Pro; (3.) knowingly access or use PageOptimizer Pro Content in a manner that abuses or disrupts the PageOptimizer Pro networks, security systems, user accounts, or any Sites or Services or those of any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (4.) market, offer to sell, and/or resell any Services unless authorized in an Other PageOptimizer Pro Agreement or other written agreement executed on behalf of PageOptimizer Pro by its authorized representative; (5.) use PageOptimizer Pro Content in violation of this TOS or Other PageOptimizer Pro Agreement, or any PageOptimizer Pro policies, applicable laws, ordinances, or regulations; (6.) use any Sites or Services to send unsolicited or unauthorized advertising, junk mail, or spam; (7.) harvest, collect, or gather information or data regarding other PageOptimizer Pro users without their consent; (8.) transmit through or upload on any Sites or Services any material that may infringe the intellectual property or other proprietary rights of third parties, including any trademark, copyright, data privacy, or right of publicity; (9.) transmit or post on any Sites or Services any material that contains software viruses or other malicious or harmful computer code, files, or programs; (10.) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of PageOptimizer Pro Content; (11.) circumvent or disable any usage rules or other security features for or used by any Sites or Services; or (12.) disclose, reproduce, summarize, distribute, or use any Sites or Services except as necessary to exercise the rights granted to you in this TOS. PageOptimizer Pro shall have sole and exclusive discretion to determine violations of these restrictions and then may immediately suspend your account and access to any Sites or Services for violations of these restrictions.
D. Except for your rights to access and use any Sites or Services and the PageOptimizer Pro Content expressly granted by this TOS, PageOptimizer Pro retains all right, title, and interest in and to PageOptimizer Pro Content and any Sites or Services, including all related intellectual property rights. PageOptimizer Pro Content and any Sites or Services are protected by applicable intellectual property laws in the US and internationally. No grant or transfer of any right, title, or interest to you shall be implied. Notwithstanding anything to the contrary, on termination or expiration of this TOS, all rights and licenses granted to you under this TOS shall terminate.
12. Copyright Infringement
If you believe that your work has been used related to this TOS in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify PageOptimizer Pro at email@example.com
You must provide all of the following in writing: identify the copyrighted work that you claim has been infringed (or if multiple copyrighted works, then a representative list of such works); identify the content on the Services that you claim is infringing with enough detail so that PageOptimizer Pro may locate it; your statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; your statement declaring that the notification is accurate, and, under penalty of perjury, that you are the exclusive owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; information reasonably sufficient to permit PageOptimizer Pro to contact you, i.e. address, telephone number, and email address; and your physical or electronic signature.
On receiving your above notice, PageOptimizer Pro will take whatever action, in its sole discretion, it deems appropriate, including removal of the disputed use from the Sites or Services or termination of the posting account.
13. User Indemnification of PageOptimizer Pro for Certain Actions
14. Warranties and Limitations
Each party warrants and represents that it shall comply with all applicable laws and regulations in performing its obligations under this TOS. EXCEPT FOR ANY EXPRESS WARRANTY IN THIS TOS, PAGEOPTIMIZER PRO AND ITS THIRD-PARTY SUPPLIERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES REGARDING ANY PAGEOPTIMIZER PRO CONTENT, SITES, OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY. PAGEOPTIMIZER PRO AND ITS THIRD-PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY, OR COMPLETENESS OF ANY SITES OR SERVICES OR THE RESULTS YOU MAY OBTAIN FROM THEIR USE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAGEOPTIMIZER PRO AND ITS THIRD-PARTY SUPPLIERS DO NOT REPRESENT OR WARRANT THAT (1.) THE OPERATION OR USE OF ANY SITES OR SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR (2.) THE QUALITY OF ANY SITES OR SERVICES WILL MEET YOURS OR ANY OTHER REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER PAGEOPTIMIZER PRO NOR ITS THIRD-PARTY SUPPLIERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT ANY SITES OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, AND THEREFORE NEITHER PAGEOPTIMIZER PRO NOR ANY OF ITS THIRD-PARTY SUPPLIERS ARE RESPONSIBLE FOR ANY DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY PAGEOPTIMIZER PRO, ANY SITES OR SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE.” Users or Subscribers may have additional rights as a consumer under local law that this TOS cannot change.
15. THIRD-PARTY SOFTWARE; LIABILITY LIMITATION; EXCLUSIVE REMEDIES FOR USERS AND SUBSCRIBERS
A. Third-Party Software. You are solely and entirely responsible for any third-party software that you obtain and use in connection with any Sites or Services. PageOptimizer Pro exercises no control over such third-party software, and is not responsible for its performance. Your purchase or use of such software shall be governed by the terms and conditions of such third parties, and you may therefore be asked to accept terms and conditions at the time of purchase and/or access. PageOptimizer Pro is not responsible or liable, directly or indirectly, for any damage or loss caused to you by use of or reliance on any third-party software. You are responsible for all fees charged to you by third parties, or such software or other services you require related to accessing or using any Sites or Services. You are responsible for obtaining all licenses for third-party software for your use with any Sites or Services. If PageOptimizer Pro believes that you lack necessary rights to use any third-party software that you depend on or use with any Sites or Services, PageOptimizer Pro may suspend or terminate your access to such Sites or Services.
B. EXCLUSIONS OF CERTAIN DAMAGES AND LIMITATIONS OF LIABILITY. You agree that these exclusions of damages and limitations of liability are a fundamental element of the parties’ agreements in this TOS.
(1.) Under no circumstances will PageOptimizer Pro or any of its third-party suppliers or any of their respective affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Sites or transmitted to or by you or any other Users or Subscribers.
(2.) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PageOptimizer Pro NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE TO YOU OR ANYONE ELSE, INCLUDING BUT NOT LIMITED TO ANY ORGANIZATIONS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES RESULTING FROM ANY ACCESS TO OR USE OF ANY SITES OR SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF PageOptimizer Pro OR ANY OF ITS THIRD-PARTY SUPPLIERS WERE ADVISED THAT SUCH DAMAGES WERE POSSIBLE. The disclaimer in the preceding sentence includes any damages arising from your inability to access or use any Sites or Services (including due to modification, suspension, blocking, discontinuance, cancellation, or termination of any Services or any part thereof). Without limiting the foregoing, you specifically acknowledge and agree that neither PageOptimizer Pro nor any of its third-party suppliers is liable for the defamatory, offensive, infringing, breaching, fraudulent, or illegal conduct of other users, subscribers, or third parties and that any risk from the foregoing are assumed entirely by you. These limitations apply to any matter related to any Sites, Services, or their content; third-party Internet sites, programs, or conduct; viruses or other disabling features; incompatibility between any Sites or Services and other services, software, or hardware; and any delay or failure in initiating, conducting, or completing any transmission or transaction connected with any Sites or Services in an accurate or timely manner.
(3.) Limitation of Liability. Any liability of PageOptimizer Pro or any of PageOptimizer Pro’s third-party suppliers of any kind arising out of or related to this TOS (including but not limited to warranty claims) or any of your use of the Sites or Services, regardless of the forum and whether any action or claim is based on breach of contract, breach of warranty, tort (including negligence), or any other legal theory, shall not exceed the greater of (a.) the total amount paid by you to PageOptimizer Pro to access or use any Sites or Services giving rise to such liability during the six (6) months immediately preceding the date the liability arose or (b.) twenty United States dollars (USD$20.00).
(4.) This Section 15.B. applies even if this remedy does not fully compensate you for any losses or fails its essential purpose; or even if PageOptimizer Pro or any of its third-party suppliers knew or should have known about the possibility of the losses, liability, or damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or limitation of liability for certain claims or causes of action, so the above limitations or exclusions may not apply to you in these jurisdictions.
16. Special Admonitions for International Use
A. Your Internet use may be global; thus, you agree to comply with all local rules and laws regarding your access and use of any Sites or Services through the Internet, and without limitation, you will comply with all applicable laws regarding obscene and indecent content and transmitting technical data exported from Australia or the country in which you reside.
B. With respect to any personal data (as defined under the General Data Protection Regulation [GDPR] [EU] 2016/679 and any other applicable data protection legislation) (“Personal Data”) which PageOptimizer Pro processes on your behalf, PageOptimizer Pro does not process any Personal Data as a part of its core function. Thus, PageOptimizer Pro is more typically the Data Controller and is not a Data Processor to Personal Data in which you are a Data Controller. However, in the unlikely event that you believe PageOptimizer Pro is a Data Processor to you as a Data Controller, please contact PageOptimizer Pro at firstname.lastname@example.org
, and PageOptimizer Pro can consider if it is necessary under applicable law for you to appoint PageOptimizer Pro as a Data Processor pursuant to an appropriate Data Processor agreement/addendum.
Upon termination of Services, any payment liabilities owed to PageOptimizer Pro and accrued prior to the effective date of the termination will survive. In addition to any obligations or restrictions in the TOS that by their nature should reasonably survive termination of this TOS, the following sections shall also survive termination of this TOS: 1.A., 1.D.(1.), 1.D.(3.), 1.F., 2.C., 3.A.(1.), 3.A.(6.)(a.), 3.B.(1.), 3.B.(3.), 4.C., 4.F., 4.G., 4.J., 5., 6., 7.C. to 7.E., 8., 9., and 11. to 18. You are solely responsible for removing your information and material from any Sites or Services prior to any termination. PageOptimizer Pro is not obligated to retain your information, material, or data following termination.
18. Miscellaneous Clauses
A. Changes to Services. PageOptimizer Pro may change any Sites or Services from time to time, with or without notice, by adding, modifying, suspending, or discontinuing features of such Sites or Services. Your access to and use of any Sites or Services depends on you complying with any applicable laws or this TOS.
B. Force Majeure. Neither you nor PageOptimizer Pro will be liable to the other for any delay or failure to perform any obligation under this TOS if the delay or failure is due to circumstances beyond such party’s reasonable control. The affected party will notify the other party of such event and resume performance as soon as reasonably practicable.
D. Notices. If PageOptimizer Pro must send you additional information regarding the TOS or any Sites or Services, you consent to receiving this information electronically. PageOptimizer Pro may provide required information to you by email at any address you registered with the Sites or Services or via posting on the Sites or Services. Notices provided to you via email are effective on the transmission date. You will provide PageOptimizer Pro any written notice under this TOS by email to email@example.com
E. Forum and Jurisdiction. This TOS is governed by the laws of the State of Washington, USA, without regard to its conflict of law provisions. You irrevocably consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington, USA to resolve any dispute, claim, or controversy that arises from this TOS.
F. Additional Rights and Obligations. This TOS shall neither obligate PageOptimizer Pro, nor provide any rights, to any third-party whatsoever as an intended third-party beneficiary under this TOS. You and PageOptimizer Pro are independent contractors without authority to bind each other or to make any representations on behalf of the other party, and you and PageOptimizer Pro shall not be held to be partners or co-venturers. If any provision of this TOS is held invalid or unenforceable, such provision shall be held superseded by a valid, enforceable provision that most closely matches the intent of the original provision; the remaining provisions will remain in full force and effect. Any party's failure to act with respect to a breach of this TOS does not constitute a waiver or affect that party's rights to act subsequently. You may not assign rights or delegate any duties under this TOS without prior written notice to and consent by PageOptimizer Pro. This TOS will bind any permitted successors and permitted assigns.