Please read these OptiFit Terms of Service (“Terms”) carefully as they are a binding agreement between You and Tinjis LLC DBA OptiFit.com, referred to as “OptiFit” in these terms. By accessing or using any website or page which links to these Terms (“Website”), you agree to be bound by the Terms and to comply with applicable laws and regulations.
The Website contains a variety of information and resources including, but not limited to, product descriptions, text, images, photographs, documents, testimonials, logos, diagrams, reports, software, download areas, communication forums, Web Services Application Program Interface information (“APIs”), and other tools (collectively the “Materials”).
Please read the Terms of Service carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Service and our Privacy Policy, incorporated herein by reference. If you do not want to agree to these Terms of Service or the Privacy Policy, you must not access or use the Website.
By accessing, using and/or ordering the Service, you warrant that you are authorized to do so, and agree to be bound by these Terms. If you are using the Service on behalf of an organization or legal entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization, and you represent and warrant that you have the authority to bind that Organization to these Terms. In that case, “You” and “Your” refers to You and that Organization.
Changes to the Terms of Service
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter.
Your continued use of the Website following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page each time you access this Website, so you are aware of any changes, as they are binding on you.
1. The Service
The Service, offered on a software-as-a-service subscription basis is subject to the Terms. OptiFit retains all rights to the Service. We may change the Service in our sole discretion from time to time as we refine it and add more or other features. We may also stop, suspend, or modify the Service at any time with 48 hours prior notice to you, in any circumstances we reasonably determine to be necessary, including but not limited (i) to perform essential repairs/maintenance to the Service; (ii) where your use of the Service is in breach of your obligations under this agreement; (iii) where payment of the fees for the Service are not paid in a timely manner (See pricing and payment). We also may impose limitations on bandwidth usage for the Service as we, in our sole discretion, determine to be appropriate.
You acknowledge and agree that the Service operates on, or with, or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”). OptiFit is not responsible for the operation of any Third Party Services, nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights to access Third Party Services and for complying with any applicable terms or conditions thereof. OptiFit does not make any representations or warranties with respect to Third Party Services. Any exchange of data or other interaction between you and Third Party Services is solely between you and that third party and is governed by such third party’s terms and conditions.
2. Pricing and Payment
You shall make payment for the fees as specified in the Terms. All fees are exclusive of all applicable taxes, and you agree to pay any and all taxes that you are obliged to pay by law in relation to any transaction between you and OptiFit. All payments shall be made in US dollars, unless agreed otherwise in the Terms. All payment will be due when invoiced by credit card, unless agreed otherwise in the Terms. If your method of payment is rejected due to expiration dates and or insufficient funds, we charge 1.5% reprocessing fee as is our right under Section 1. OptiFit may charge interest or reprocessing fees on late or unpaid amounts at the lesser of 1.5% per month or the maximum rate allowed by law.
The Terms will specify the usage limitations applicable to your use of the Service, which may include the maximum number of authorized users and agreed bandwidth. You agree to keep a record of your usage of the Service, including the number of users. OptiFit reserves the right to monitor your actual use of the Service. Where your actual use exceeds the limitations agreed in the Terms, upon receipt of OptiFit’s invoice, you shall pay additional fees proportionate to your excess use for the remainder of the term. Any credits due to you will be applied on the next invoice against the amounts then due.
3. Content
In order to make use of the Service, you or your users may upload, create, or input information, (personal) data, documentation, and other materials (together, “Content”) into the Service. You have sole responsibility for all Content which you store in the Service, whether publicly posted or privately transmitted by you. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service. If you use or rely on any Content or materials posted via the Service or obtained by you through the Service, it is at your own risk. OptiFit disclaims all liability as regards any of your Content and will not be liable for (i) any loss or damage of any kind incurred as a result of the use of any Content in the Service, (ii) any losses, costs, or expenses resulting from the loss or corruption of your Content, and/or (iii) any third party claims relating to your Content.
You agree not to upload Content to the Service that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any Content that you post does not and will not violate third party rights of any kind, including, without limitation, any intellectual property rights of third parties, or rights of privacy. We reserve the right to reject and/or remove any Content that we believe, in our sole discretion, violates the Terms.
We also reserve the right to access, read, preserve, and/or disclose any information as we reasonably believe is necessary to (i) perform the Service, (ii) satisfy any applicable law, regulation, legal process or governmental request, (iii) enforce the Terms, including investigation of potential violations, (iv) detect, prevent, or otherwise address fraud, security or technical issues, (v) respond to user support requests, or (vi) protect the rights, property or safety of OptiFit, its users and/or the public.
You retain full ownership of your Content, but you hereby grant us a worldwide, non-exclusive, irrevocable, transferable, royalty-free license (with the right to sublicense) for the term of the Service, to use, copy, reproduce, process, adapt, modify, publish, transmit, edit, translate, make derivatives, display and distribute any and all Content in connection with providing the Service. This license also includes the right to modify or adapt your Content as part of the Service in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. You also extend these rights to the Third Party Services with whom we work to provide the Service. You represent and warrant that you have the rights and authority necessary to grant the rights granted herein to any Content that you submit, including all necessary rights to upload your content for use in accordance with the Terms.
With written permission from you, we may use your name and logo on our website located at https://OptiFit.com for the purpose of marketing OptiFit and the Service. Use of your name and logo on the website will be revocable by you for any reason, at any time, provided you exercise this right in writing.
4. Acceptable Uses of OptiFit
OptiFit is trusted by its users, and we trust you to use our Service responsibly. You agree not to misuse the Service. For example, you must not, and must not attempt to use the Service to or for (i) any unlawful purposes or for promotion of illegal activities; (ii) post any Content in violation of any applicable law, including intellectual property laws and right of privacy or publicity laws, or any contractual obligation; (iii) impersonate others, or otherwise misrepresent your affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others; (iv) publish or post other people’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers; (v) send spam; (vi) publish or link to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy; (vii) access, tamper with, or use non-public areas of the Service, OptiFit’s computer systems, or the technical delivery systems of OptiFit’s providers; (viii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (ix) access or search the Service by any means other than our publicly supported interfaces (for example, “scraping”); (x) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; (xi) interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service. This list is not exhaustive. You and all of your users agree to comply with all local laws regarding online conduct and acceptable content.
We may investigate and/or suspend your account if you violate any of the above rules. Furthermore, we reserve the right to immediately terminate your account without further notice in the event that, in our sole and absolute judgment, you violate the Terms, or abuse the Service.
Some use of our Service may require you to download a client software package (“Software”). OptiFit hereby grants you a limited, nonexclusive, non-transferable, revocable license to use the Software, solely to access the Service. Your license to use the Software will be automatically revoked if you violate the Terms and if your Service term ends. You must not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so. Our Service may update the Software on your device automatically when a new version is available.
5. Your Account
You must provide us with accurate information when you create your OptiFit account. Your OptiFit account gives you access to the Service. We may maintain different types of accounts for different types of users or organizations. When you connect to OptiFit through a Third Party Service, you thereby give us permission to access and use your information from that Third Party Service (on such terms as are permitted by that service), and to store your log-in credentials for that service. You may never use another user’s Service account without permission.
You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with OptiFit or a Third Party Service. We encourage you to use “strong” passwords that use a combination of upper and lower case letters, numbers, and symbols with your account. You agree not to disclose your password to any third party. OptiFit cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You must notify OptiFit immediately upon becoming aware of any breach of security or unauthorized use of your account.
6. Support
OptiFit will provide Technical Support to you via email and telephone on weekdays during the hours of 9:00 am through 5:00 pm EST, with the exclusion of Federal Holidays (“Support Hours”).
You may initiate a help desk ticket during Support Hours by emailing support@OptiFit.com.
OptiFit will endeavor to provide a response to all help desk tickets within 24 hours.
7. Confidential Information
“Confidential Information” means all information and materials obtained by a party (the “Recipient”) from the other party (the “Disclosing Party”), whether in tangible form, written or oral, that is identified as confidential or would reasonably be understood to be confidential given the nature of the information and circumstances of disclosure, including without limitation any information about the business practices of either party and the Terms. Confidential Information does not include information that (a) is already known to the Recipient prior to its disclosure by the Disclosing Party; (b) is or becomes generally known through no wrongful act of the Recipient; (c) is independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (d) is received from a third party without restriction and without a breach of an obligation of confidentiality. The Recipient shall not use or disclose any Confidential Information without the Disclosing Party’s prior written permission, except as necessary for the provision or use of the Service. The Recipient shall protect the confidentiality of the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information, but using not less than a reasonable degree of care. The Recipient may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order, provided that the Recipient provides prior notice of such disclosure to the Disclosing Party, unless such notice is prohibited by law, rule, regulation or court order.
These confidentiality obligations shall remain in effect for so long as the Confidential Information of the Disclosing Party is retained.
8. Intellectual Property Rights in the Service
All intellectual property rights, titles, and interests in and to the Service are and will remain the exclusive property of OptiFit or its licensors (as applicable). The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the OptiFit name or any of the OptiFit trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding OptiFit, or the Service is entirely voluntary, and you acknowledge and irrevocably agree that we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
9. Data Protection and Data Security
We care about the privacy of our users. We may collect, use and share personally identifiable information and non-personally identifiable information as described in our Privacy Policy as accessible at OptiFit.com/privacy. To be clear, aside from the exceptions we identify in the Privacy Policy and the Terms, no matter how the Service changes, we won’t share your Content with others unless: (a) you have given us permission to do so; (b) we are required to by law or by valid legal process; or (c) we need to do so in order to provide you the Service. By using the Service, you agree to the collection of such information, and to have your personal data collected, used, transferred to, and processed by us and by third parties on our behalf.
We shall implement and maintain reasonable administrative, physical, and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of your data (including any applicant or employee data furnished by you as may be held or accessed by us).
10. Third-Party Links
The Service may have links to Third Party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. We do not endorse or assume any responsibility for any of these third party sites, information, materials, products, or services. If you access a third party website from the Service, you do so at your own risk, and you understand that these Terms and our Privacy Policy do not apply to your use of those sites. You expressly relieve OptiFit from any and all liability arising from your use of any third party website, service, or content and agree that your dealings with any third party website, service, or content is only between you and such third parties. You agree that we are not responsible for any loss or damage of any sort in your dealings with such third parties. Many of these third party services expressly disclaim all warranties, support or other liabilities or obligations to you in respect of their software or service. You should read the applicable Terms of Service and Privacy Policy of any third party link or service before using them.
11. Modifications
We may revise these Terms from time to time and the most current version will always be posted on our website. By continuing to access or use the Service after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to any updated terms, please stop using the Service.
12. Indemnity
To the fullest extent allowed by applicable law, you agree to indemnify and hold OptiFit, its affiliates, officers, agents, employees, suppliers, licensors and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the service (including any actions taken by a third party using your account), and (b) your violation of the terms. in the event of such a claim, suit, or action (“claim”), we will attempt to provide notice of the claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
13. Entire Agreement
The Terms will constitute the entire agreement (“Agreement”) between OptiFit and you with respect to the subject matter contemplated herein, and supersede all oral statements and prior writings with respect to the subject matter contemplated herein. This Agreement is entered into after full investigation by each party, and neither party is relying on any statement or representation made by the other not embodied in this Agreement.
14. No Warranty – OptiFit Is Available “As-Is”
Though we want to provide a great service, there are certain things about the Service we can’t promise. The Service and software are provided “as is” and to the fullest extent permitted by law, neither OptiFit, its agents, affiliates, licensors, nor suppliers, make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, and non-infringement. OptiFit makes no representations about any content or information in, or from, an end user or customer services account. except as stated in this section, OptiFit does not represent that customer’s use of the service or software will be secure, uninterrupted or error free. no statement or information, whether oral or written, obtained from OptiFit in any means or fashion shall create any warranty not expressly and explicitly set forth in the terms.
OptiFit is not responsible for the accuracy, completeness, appropriateness, or legality of data, user posts, or any other information posted by a user.
OptiFit will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Service or Software
15. Limitation of Liability
To the fullest extent permitted by law, in no event will OptiFit, its affiliates, officers, employees, agents, suppliers or licensors be liable for (a) any indirect, special, incidental, punitive, exemplary or consequential (including loss of use, data, business, or profits) damages, regardless of legal theory, whether or not OptiFit has been warned of the possibility of such damages, and even if a remedy fails of its essential purpose; (b) aggregate liability for all claims relating to the Service more than the greater of $20 or the amounts paid by you to OptiFit for the past three months of the service in question.
The Service is controlled and operated from its facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
16. Notice
We may provide notifications, whether these are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion.
Any notice provided to OptiFit hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt, if by personal delivery; (ii) upon receipt, if sent by certified or registered US Mail (return receipt requested); or (iii) one (1) day after it is sent, if by next day delivery by a major commercial delivery service. Notices sent via email are deemed received at the time that the notices are sent.
17. Miscellaneous
All sections of the Terms which by their nature should survive termination of any agreement between you and OptiFit, will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
You agree that the Service is primarily delivered from Wyoming; and these Terms are governed by the internal substantive laws of the State of Wyoming, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You consent to the exclusive jurisdiction and venue of courts in the State of Wyoming in all disputes arising out of or relating to the Terms. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms shall otherwise remain in effect. No waiver shall be implied from conduct or failure to enforce or exercise rights under these Terms. Nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claiming to have waived.
These Terms and any rights and licenses granted hereunder, may not be transferred, or assigned by you without our written permission, but may be assigned by us without restriction. Any attempted transfer or assignment by you will be null and void.
No supplement, modification, or amendment of these Terms shall be binding unless executed in writing by a duly authorized representative of each party.
Neither OptiFit nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster or Internet disturbance).
OptiFit may suspend performance under these Terms if you cease business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Termination is not an exclusive remedy and the exercise of OptiFit by any remedy under these Terms will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
18. Jurisdiction
Where a dispute arises in connection with this agreement, the parties shall meet in good faith to attempt to resolve it. Where the parties are unable to reach a resolution, the parties submit to the exclusive jurisdiction of the courts of the State of Wyoming. Each party shall bear its own costs in connection with such an action.
Nothing in this Section shall be deemed as preventing OptiFit from seeking injunctive or other equitable relief from the courts as necessary to protect any of OptiFit’s proprietary interests. Except as otherwise provided in these Terms, all remedies are cumulative and in addition to (not in lieu of) any other remedies available to a party at law or equity.
All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You agree that, by using the service, you and OptiFit are each waiving the right to a trial by jury or to participate in a class action.
Contact OptiFit
For any questions regarding these Terms of Service, please contact us at OptiFit, PO Box 67, Westford MA 01886, via email at support@OptiFit.com, or by phone at 877-374-1088.