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Subject to your ongoing compliance with these Terms and Conditions, OPEXEngine hereby grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, freely revocable license to access and use the Site solely for your personal, non-commercial, and lawful purposes provided that you maintain all copyright, trademark and other intellectual property notices therein. Further, OPEXEngine does not grant you permission, by implication, estoppel or otherwise, to state or suggest that OPEXEngine promotes or endorses any third party’s political views, ideas, causes, products, or services. All other rights are hereby expressly reserved.
Your use of the Site, including all features and functionalities associated therewith, shall be in accordance with all applicable laws, rules, and regulations, or other restrictions on the use of the service or Content. You shall comply with these Terms and Conditions and shall not: (i) archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works of, offer for sale, or use, any Content or information contained in or obtained from or through the Site; (ii) delete the copyright or other proprietary rights notices from the Site or any Content; (iii) circumvent, remove, alter, deactivate, degrade or thwart any of the content or other protections enabled on the Site; (iv) use any robot, spider, scraper or other automated means to access the Site; (v) decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site; (vi) insert any code or product or manipulate the Site in any way; (vii) use any data mining, data gathering or extraction method; (viii) upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Site, including any software viruses or any other computer code, files or programs; (ix) remove, modify, disable, block, impair, or obscure any advertising in connection with the Site; or (x) use or encourage the use of the Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy.
OPEXEngine shall have the right to alter, suspend or discontinue the Site or your access to or use of the Site at any time for any reason without notice or liability to you or any third party. The Site may become unavailable due to maintenance or malfunction of computer equipment or for other reasons and may result in damages to your systems, software, data, or operations for which OPEXEngine shall not take on any liability.
OPEXEngine makes no representations whatsoever about any other website which you may access through this one. When you access a non-OPEXEngine website, please understand that it is independent of OPEXEngine and that OPEXEngine has no control over the content on that website, even if OPEXEngine provides information or services to the owner of that website. In addition, a link to a non-OPEXEngine website does not mean that OPEXEngine endorses or accepts any responsibility for the content or the use of such a website. In fact, OPEXEngine disclaims any and all liability and responsibility for such content. It is up to you to take precautions to ensure that whatever you select for your use is free of such items as viruses, worms, trojan horses, and other items of a destructive nature.
The copyright in all materials, features, and functionality on the Site, including text, graphics, videos, audio recordings, software, algorithms, artwork, interfaces, photographs, logos, icons, and images and the selection and arrangement thereof along with any enhancements to or derivative works thereto (collectively, “Content”), is the exclusive property of OPEXEngine or its licensors and is protected by the U.S. and international laws. None of the Content shall be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of OPEXEngine or the copyright owner in each instance. You shall not “mirror” or “frame” any Content or the Site itself, in whole or in part, without OPEXEngine’s express written permission. Any unauthorized use of the Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes. All rights not expressly granted are hereby reserved. You shall be solely responsible for ensuring that any information or Content obtained from the Site does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software, data, or operations.
The trademarks, service marks, logos, and trade names (the “Trademarks”) used and displayed on the Site, including, but not limited to, OPEXEngine™, BenchmarkEngine™, and Performance Engine are registered and unregistered Trademarks of OPEXEngine. Other trademarks, service marks, logos, and trade names may be owned by others. Nothing on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark or any other OPEXEngine intellectual property displayed on the Site. OPEXEngine aggressively enforces its intellectual property rights to the fullest extent of the law. The trademark and trade name BenchmarkEngine™ and any other Trademarks shall not be used in any way, including in advertising or publicity pertaining to distribution of Content on the Site, without prior written permission from OPEXEngine and you shall not refer to or attribute any information to OPEXEngine or its licensors in any public medium for promotional or advertising purposes, or otherwise, or for the purpose of influencing a third party. OPEXEngine also prohibits the use of BenchmarkEngine™ and any other Trademarks as part of a link to or from any site unless the establishment of such a link is approved in advance by OPEXEngine in writing.
You acknowledge and agree that OPEXEngine owns and has the unrestricted right to use, publish, in electronic form and otherwise, distribute and exploit any and all information that you post, submit, share or otherwise publish on the Site (“Submissions”). You hereby waive any and all claims against OPEXEngine for any alleged or actual infringements of any rights of privacy or publicity, moral rights, rights of attribution, or any other intellectual property rights in connection with OPEXEngine’s use and publication of such Submissions. This means that anything posted, submitted, shared, or otherwise published by you to the Site shall be owned by OPEXEngine and may be used by OPEXEngine for any purpose, now or in the future, without any payment to, or further authorization by, you. In the event OPEXEngine’s ownership of such Submissions is successfully contested, you automatically grant OPEXEngine a perpetual, royalty-free, non-exclusive, sublicensable, transferable, unrestricted, worldwide and irrevocable right and license to use, reproduce, modify, publish, translate, prepare derivative works based upon, distribute, perform or display such Submissions, in whole or in part, in any form, media or technology known or hereafter developed for any purpose, including, but not limited to, advertising and promotional purposes. In addition, you hereby waive all claims against OPEXEngine for any actual or alleged violation of any privacy or publicity rights, moral rights or rights of attribution, or infringement of intellectual property rights in any way arising from or relating to the Submissions. OPEXEngine does not represent or endorse the accuracy or reliability of any Submissions displayed, uploaded, posted on any message board, or otherwise distributed through the Site by any user of the Site, information provider, or any other third party. OPEXEngine expressly disclaims any and all liability related to Submissions, and you acknowledge and agree that any reliance upon such Submissions shall be at your sole option, liability, and risk. You covenant that you shall not post, submit, share or otherwise publish on the Site any materials that: (i) are threatening, libelous, defamatory, or obscene; (ii) would constitute, or that encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate law; (iii) infringe the intellectual property, privacy, or other rights of any third parties; (iv) contain a computer virus or other destructive element; (v) contain advertising; or (vi) constitute or contain false or misleading statements. OPEXEngine in its sole discretion reserves the right to refuse to post and the right to remove any information or Submission from the Site, in whole or in part, for any reason.
There may be delays, omissions, or inaccuracies in information obtained through your use of the Site. The information on the Site is provided to you with the understanding that OPEXEngine’s provision of this information to you does not constitute the rendering of investment, consulting, legal, accounting, tax, career, or other advice or services. Information on the Site should not be relied upon for making business, investment, or other decisions or used as a substitute for consultation with professional advisors. Moreover, OPEXEngine does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed, uploaded, downloaded, or distributed through the Site by OPEXEngine, any user, information provider, or any other person or entity. You acknowledge and agree that any reliance upon such opinion, advice, statement, memorandum, or information shall be at your sole option, liability, and risk. Moreover, OPEXEngine does not grant any license or other authorization to you to use the Site in any manner if such use in whole or in part suggests that OPEXEngine promotes or endorses a third party’s causes, ideas, political campaigns, political views, websites, products or services.
THE SITE, INCLUDING ALL CONTENT THEREIN, IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OPEXENGINE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, OPEXENGINE DOES NOT REPRESENT OR WARRANT THAT: (1) THE INFORMATION ON THE SITE IS CORRECT, ACCURATE, OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE SHALL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS SHALL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
UNDER NO CIRCUMSTANCES SHALL OPEXENGINE OR ANY OF ITS PREDECESSORS, SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT DIRECTLY OR INDIRECTLY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE INFORMATION, CONTENT, SOFTWARE, PRODUCTS, AND SERVICES ADVERTISED OR CONTAINED ON THE SITE OR OTHERWISE OBTAINED FROM OR ARISING OUT OF YOUR USE OF THE SITE, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SITE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF BAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD.
IN NO EVENT SHALL OPEXENGINE’S OR ANY OF ITS PREDECESSORS’, SUCCESSORS’, PARENTS’, SUBSIDIARIES’, AFFILIATES’, OFFICERS’, DIRECTORS’, SHAREHOLDERS’, INVESTORS’, EMPLOYEES’, AGENTS’, REPRESENTATIVES’ AND ATTORNEYS’ AND THEIR RESPECTIVE HEIRS’, SUCCESSORS’ AND ASSIGNS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE EXCEED $1. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS.
You hereby indemnify, defend, and hold harmless OPEXEngine and all of its predecessors, successors, parents, subsidiaries, affiliates, officers, directors, shareholders, investors, employees, agents, representatives, and attorneys and their respective heirs, successors, and assigns (collectively, the “Indemnified Parties”) from and against any and all liability and costs, including, without limitation, reasonable attorneys’ fees, incurred by any or all the Indemnified Parties in connection with any claim arising out of or relating to: (i) your access to or use of the Site, or (ii) any breach by you of these Terms and Conditions or the representations, warranties, and covenants you have made by agreeing to these Terms and Conditions. You shall cooperate as fully as reasonably required in the defense of any such claim. Bain reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
These Terms and Conditions are governed and interpreted pursuant to the laws of the Commonwealth of Massachusetts, United States of America, notwithstanding any principles of conflicts of law. You expressly agree that exclusive jurisdiction resides in the courts of the Commonwealth of Massachusetts. You further agree and expressly consent to the exercise of personal jurisdiction in the Commonwealth of Massachusetts in connection with any dispute or claim involving OPEXEngine. If any part of these Terms and Conditions is unlawful, void, or unenforceable, that part shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
OPEXEngine prohibits the posting of any information that infringes or violates the copyright rights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity. If you believe that any material contained on the Site infringes your copyright or other intellectual property rights, you should notify OPEXEngine of your copyright infringement claim in accordance with the following procedure. OPEXEngine shall process notices of alleged infringement which it receives and shall take appropriate action as required by the Digital Millennium Copyright Act (“DMCA”). The DMCA requires that notifications of claimed copyright infringement should be sent to the Site’s Designated Agent who is:
Lauren Kelley
OPEXEngine LLC
738 Main Street #207
Waltham, MA 02451
info@opexengine.com
To be effective, the notification must be in writing and contain the following information (DMCA, 17 U.S.C. §512(c)(3)):
These Terms and Conditions constitute the entire agreement between you and OPEXEngine with respect to the subject matter of these Terms and Conditions and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding that subject matter. Any waiver of any provision of these Terms and Conditions shall be effective only if in writing and signed by OPEXEngine. Any failure to enforce any provision of these Terms and Conditions shall not constitute a waiver of a future breach of that or any other provision of these Terms and Conditions.
