TERMS OF USE

Last updated May 30, 2023

 

INTRODUCTION

 

We are Optitude LLC, a Colorado limited liability company (“Optitude”, “we”, “us”, “our”, or the “Company”). We operate the website: https://www.optitude.co/ (“Website”), which allows users to browse our online store and purchase our Products (defined in our Terms of Sale) and services for sale.

 

These Terms of Use (“Terms”) constitute a legally binding agreement made between you as the visitor to our Website and/or user purchaser and user of our Products (referred to in these Terms as “you”, “your”, “user”, “Participant”), whether personally or on behalf of an entity. Each of us may be referred to individually as a “Party” and collectively, the “Parties”.

 

These Terms also include our Terms of Sale, Participation Agreement, and Privacy Policy as updated from time-to-time, which are expressly incorporated into and made part of these Terms. You agree that by accessing and using our Website that you have read, understood, and agreed to be bound by these Terms.

 

We recommend that you print a copy of our Terms for your records.

 

IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM ACCESSING AND USING OUR WEBSITE, AND YOU MUST DISCONTINUE USE IMMEDIATELY.

 

I. TERMS OF USE

1. ​CHANGES TO THESE TERMS

 

We reserve the right to make changes to our Terms at any time, and such changes will be effective immediately upon being posted on the Website. Each time you use the Website, you should review the current Terms. You can determine when our Terms were last revised by referring to the "Last Updated" legend at the top of any Legal Terms document. Any modified Terms will become effective upon publication.

 

By continuing to access and use our Website after the effective date of any changes, you agree to be bound by the modified terms.

 

2. ACCESSING OUR WEBSITE

 

a. Age requirements. This Website is offered and available to users who are eighteen (18) years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company, and you meet all of the foregoing eligibility requirements. If you are under eighteen (18) years old, you may not use the Website, purchase any products from us, or submit any information to the Company or the Website.

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b. Access. You are responsible for making all arrangements necessary for you to have access to the Website. We reserve the right to withdraw or amend this Website or Products we provide on the Website, at our sole discretion without notice. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material. We will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to its users.

 

3. PRODUCTS AVAILABLE FOR SALE

 

a. General. Certain Products may be available online through the Website. These Products are subject to our Terms of Sale including any refunds and limited warranty policies we may have.

 

b. Restrictions and Limited Quantities. We reserve the right, but are not obligated, to limit the sales of our Products and access to our Website to any person, geographic region, or jurisdiction. Any offer for any Product and access to our Website is void where prohibited. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products that we offer. All descriptions of Products or Product prices are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Product at any time.

 

c. Limited Warranty; Assumption of Risk. Except for our Products limited warranty (described below), our Products are provided on an “AS IS” and “as available” basis without any warranty, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non- infringement. No warranty is provided that the Product will be free from defects. Your use of the Product is at your own discretion and risk, and you are solely responsible for any damage of any nature resulting from your use of the Product. Some jurisdictions do not allow the exclusion of certain warranties, so some of these limitations may not apply to you.

 

4. INTELLECTUAL PROPERTY RIGHTS

 

a. Ownership. Optitude LLC is the owner or the licensee of all intellectual property rights in our Website, including all Products available for sale through the Website, and all source code, databases, functionality, software, website designs, look and feel, trade dress, audio, video, text, photographs, and graphics, as well as the trademarks, service marks, and logos contained therein (collectively, the “Content”). Our Content is protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and treaties in the United States and around the world. All other trademarks, product names, and company names and logos appearing on the Website are the property of their respective owners.

 

No right, title, or interest in or to the Website or any Content is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.

 

 

b. Grant of License; Prohibited Uses. These Terms permit you to use the Website, our Products, and to view and access our Content for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content available on or through our Website, except as follows:

 

• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

• You may store files that are automatically cached by your Web browser for display enhancement purposes.

• You may either print or download one copy of a reasonable number of complete pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.

• If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

• If we provide social media features with certain content, you may take such actions as are enabled by such features.

• You may use our purchased Products as further described in our Terms of Sale.

 

You must not:

 

• Modify copies of any materials from this Website.

• Use, copy, download or distribute any illustrations, photographs, video or audio sequences, or any graphics without written permission and separately from the accompanying text.

• Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Website.

• Access or use for any commercial purposes any part of the Website, Product, or materials available through the Website.

• Use our Products in any way contrary to the rights granted in our Terms of Sale.

 

If you wish to make any use of material on the Website other than that set out in this section, please address your request to: info@optitude.co.

 

c. Breach of License. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website or its Contents in breach of these Terms, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made.

 

5. TRADEMARKS

 

The Company names, logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Optitude LLC, its owner(s), or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

 

6. PROHIBITED USES

 

You may use the Website only for lawful purposes and in accordance with these Terms. You agree not to use the Website:

 

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.

• To impersonate or attempt to impersonate a Company employee or owner, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm the Company, the Website, or other users of the Website, or expose any of the foregoing parties to liability.

 

Additionally, you agree not to:

 

• Use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.

• Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.

• Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

• Use any device, software, or routine that interferes with the proper working of the Website.

• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.

• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Website.

 

7. MONITORING AND ENFORCEMENT; TERMINATION

 

We reserve the right to:

 

• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.

• Terminate or suspend your access to all or part of the Website for any reason, including without limitation, any violation of these Terms.

• Without limiting the foregoing, we reserve the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.

 

YOU WAIVE AND HOLD HARMLESS OPTITUDE LLC, AND ITS OWNERS, AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY, OR SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.

 

We do not undertake to review all information before it is sent to us through the Website. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

           

8. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY

 

We respect the intellectual property rights of others. If you believe that any material available on or through the Website infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided at the end of these Terms (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. If you are not sure that material located on or linked to by the Website infringes your copyright, you should consider first contacting an attorney.

 

All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Website are covered by the Notification, a representative list of such works on the Website; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.

 

For full information regarding Notifications, please see: https://www.copyright.gov/512/.

 

9. ELECTRONIC COMMUNICATIONS

 

Visiting our Website or sending emails to us constitutes electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Website, satisfy any legal requirement that such communications be in writing.

 

10. DISCLAIMERS

 

By using the Website, you agree in full to our Disclaimers.

 

1. General Disclaimer.

 

Our Website, its Content and, our Products are for personal, entertainment, informational and educational purposes only.

 

You acknowledge and agree that our Website, Content, or Products may not be suitable for all persons, businesses, locations, or specific situations.

 

Other than as expressly stated in our limited warranty of our Products only, we make no guarantees regarding the Website or Content and your success with applying any or all of these. We do not guarantee any specific results through the use of our Website or Content, and we do not make any guarantees regarding your success from the application of our Website or Content. 

 

Your decision to visit our Website, view any of its Content, or use our Products is voluntary, and you acknowledge and agree that we are not liable for any harm or damage to you, your health, your well-being, your business, or otherwise which may result from the use, whether direct or indirect, of our Website, Content, or Products.

 

To the fullest extent permitted by law, we expressly exclude any liability for any direct, indirect, or consequential loss or damage incurred by you or others in connection with our Website, Content, or Products, including without limitation any liability for any accidents, delays, injuries, harm, loss, damage, death, lost profits, damage to property, personal or business interruptions, misapplication of information, physical or mental disease, condition or issue, physical, mental, emotional, or spiritual injury or harm, loss of income or revenue, loss of business, loss of profits or contracts, anticipated savings, loss of data, loss of goodwill, wasted time and for any other loss or damage of any kind, however and whether caused by negligence, breach of contract, or otherwise, even if foreseeable.

 

Should you choose to use our Website, Content, or Products, we shall not be liable to you or any party for any type of damages stemming from or perceived to stem from, any use or reliance on our Website, Content, or Products, including any injuries sustained as a direct or indirect result of use or reliance on such information or use of such resources. You agree to hold us harmless and release us from any and all claims arising from any use or reliance on information on our Website, Content, or Products, whether now known, or discovered in the future. You expressly agree not to make any claims against the Company, including our owner(s), or affiliates, and each their respective directors, officers, contractors, and agents.

 

You specifically acknowledge and agree that we are not liable for any defamatory, offensive or illegal conduct of any other Website participant or user, including you.

 

2. Technology Disclaimer.

 

By using our Website, you acknowledge and agree that we make no guarantees or warranties regarding our Website and its condition, including its functionality, the existence of viruses, uninterrupted use, and availability. 

 

We strive to ensure that the availability and delivery of our Website, Content, or Products is uninterrupted and error-free. However, we cannot guarantee that your access will not be suspended or restricted from time to time, to allow for repairs, maintenance, updates, or other functions. To the fullest extent permitted by law, you acknowledge and agree that we are not liable to you for damages, refunds, or any other remedy, should our Website, Content, or Products become unavailable, slow or incomplete for any reason. You agree that in the event of an interruption of the access to our Website, we do not owe you any refunds or reimbursement.  

 

You acknowledge and agree that we may, at any time, in our sole discretion, discontinue our Website, Content or Products, without any notice, and such items may no longer be available. You acknowledge and agree that we are in no way obligated to continue operating our Website and that we are not liable to you in any way for a decision to cease its operation.

           

3. Errors and Omissions Disclaimer.

 

We strive to include the most up-to-date and accurate information on the Website, its Content, and our Products.  You acknowledge and agree that information contained on our Website may inadvertently include inaccuracies, errors, or omissions and we expressly exclude any and all liabilities for these inaccuracies, errors, or omissions. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its Contents.

 

4. Information Posted Disclaimer.

 

This Website may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, aggregators, and/or reporting services.

 

All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the Content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

11. LINKING TO THE WEBSITE AND SOCIAL MEDIA FEATURES

 

You may link to our Website, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.

 

This Website may provide certain social media features that enable you to:

 

• Link from your own or certain third-party websites to certain Content on this Website.

• Send emails or other communications with certain Content, or links to certain Content, on this Website.

• Cause limited portions of Content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.

 

You may use these features solely as they are provided by us and solely with respect to the Content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

 

• Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.

• Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

 

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable any or all social media features and any links at any time without notice in our discretion.

 

12. LINKS FROM THE WEBSITE AND THIRD-PARTY SERVICE PROVIDERS

 

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links to our third-party service providers, third-party social media websites, and links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

 

Certain services made available via the Website are delivered by third party websites and organizations. By using any product, service or functionality originating from our Website, you hereby acknowledge and consent that, subject to our Privacy Policy, we may share such information and data with any third party with whom we have a contractual relationship to provide the requested product, service or functionality on behalf of our Website’s users and customers.

 

13. GEOGRAPHIC RESTRICTIONS

 

The owner of the Website is based in the State of Colorado in the United States. We make no claims that the Website, any of its Content, any of our Services, or Products are accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

14. ASSUMPTION OF RISK AND DISCLAIMER OF WARRANTIES

 

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data.

 

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY PRODUCTS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.

 

OUR PRODUCTS HAVE A LIMITED WARRANTY AS DESCRIBED HEREIN AND NO OTHER WARRANTY OR GUARANTY, EXPRESS OR IMPLIED WHATSOEVER.

 

NEITHER OPTITUDE LLC NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY PRODUCTS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

 

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

15. LIMITATIONS ON LIABILITY

 

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL OPTITUDE LLC, ITS OWNERS, AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY LOSS OR DAMAGE, UNDER ANY LEGAL THEORY, CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

 

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS OWNERS, AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DEATH, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

16. INDEMNIFICATION

 

You agree to defend, indemnify, and hold harmless the Company, its owners, affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assignees from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Website, including, but not limited to, any use of the Website's Content, and Products other than as expressly authorized in these Terms, including the Terms of Sale of our Products, or your use of any information obtained from the Website.

 

17. GOVERNING LAW AND JURISDICTION

 

All matters relating to the Website and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).

 

Any legal suit, action, demand for arbitration, or other proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the City and County of Denver, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

 

18. ARBITRATION

 

Any dispute that arises from purchase of our Products or participation in any Optitude Program, will be settled according to our Terms of Sale. All other disputes related to this Website shall be settled as follows:

 

1. Negotiation. For all disputes, please first give us an opportunity to resolve the dispute which is done by emailing the following information to info@optitude.co: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the dispute within forty-five (45) days after receiving your notification, then you may pursue your dispute in arbitration.

 

2. Arbitration. If the dispute is not resolved as provided above, either party may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only and shall in no event be commenced as a class arbitration or a consolidated, collective, or representative action or arbitration, and the arbitrator shall only be empowered to hear individual claims. All issues shall be for the arbitrator to decide, including the scope of this Provision. The parties agree that they may arbitrate via videoconference, telephone, or other remote option.

 

For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.

 

Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

 

The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

 

In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms of Use, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees.

 

The parties agree that to the extent allowable, the terms, outcome, results, settlement, and all other matters related to any arbitrated dispute shall remain confidential.

 

This arbitration provision shall survive the termination of these Terms.

 

19, CLASS ACTION WAIVER

 

Any arbitration under these Terms will take place on an individual basis; class arbitrations and class, representative, or collective actions are not permitted.

 

THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER.

 

Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.

 

20. LIMITATION ON TIME TO FILE A CLAIM

 

UNLESS PROHIBITED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE WEBSITE, OR OUR PRODUCTS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

21. WAIVER AND SEVERABILITY

 

No waiver by the Company of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

 

If any provision of these Terms is held by an arbiter, court, or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.

 

22. ENTIRE AGREEMENT

 

These Terms, Privacy Policy, and other Website policies as applicable, constitute the sole and entire agreement between you and Optitude LLC regarding the Website and our Products and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website and our Products.

 

23. YOUR COMMENTS AND CONCERNS

 

This Website is operated by Optitude LLC. All feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: info@optitude.co.

 

All other Notifications may be sent to: info@optitude.co.

 

II. TERMS OF SALE

INTRODUCTION

Optitude offers products, group training (“Growth Academy”), and coaching/consulting services, paper journals, and other materials (collectively “Products”). These Terms of Sale govern the sale of our Products. Please note that we offer a limited warranty to Participants in the Optitude Growth Academy as further described below.

 

1. PRODUCTS

 

All prices and costs are displayed in US dollars. Pricing is valid only on orders placed through the Website. We are not responsible for typographical errors which result in errors in pricing or amounts available. If we find such an error, we will contact you to discuss options and/or may promptly cancel the order and issue a credit to your credit card account in the amount of the charge.

 

2. SERVICES

 

Optitude offers one-on-one consulting and coaching services through our Website. The terms of these individual services will be determined by the Parties in writing separately.

 

3. ORDERING

 

You must be eighteen (18) years of age or older to place an order. You must provide accurate and truthful information when filling out an order form. You must be the authorized user of any credit or debit card (or other acceptable method of payment), and such method must have sufficient funds to cover the cost of Products and shipping. We reserve the right to cancel any order for any reason. By placing an order, you are also agreeing to the terms of service of any Company payment processor and shipping provider associate with fulfilling orders from our Website.

 

4. SHIPPING

 

The shipping rate is calculated at checkout and is based on the weight and destination of your items. State and local taxes, where applicable, will be included in your final bill. Colorado residents are advised that each order shipped to Colorado, which includes a physical item, will be subject to an additional twenty-seven (27¢) cents retail delivery fee (“”). .

 

5. RETURNS

 

All sales are final. Unless otherwise expressly provided, our Products and quantities are limited, and all sales are final. If we send you the wrong Product, we will either work with you to exchange the Product that we sent you for the correct one, or you may return the Product and we will issue a refund. To ensure proper credit, please contact: info@optitude.co and we will authorize your return. We will not issue any refunds without an authorization from the Company. Please note that once a physical item is shipped to a Colorado user, Colorado Fees are non-refundable for any reason.

 

6. PRODUCT OWNERSHIP

 

All Products and materials that you purchase from Optitude are for your personal use only and may not be shared, re-sold, or used in any other way without Optitude’s written permission. You may make modifications of the Product or materials purchased by you for personal archival use only.

 

7. PRODUCT TRADEMARKS

 

Some of our Products may contain our trademarked brands and/or logos (“”). Such trademarks, brands and/or logos are the property of Optitude LLC, and its owner, and your use of the Branded Products may subject to restrictions. You are solely responsible for your use of the Branded Products. Optitude LLC assumes no responsibility for your use of the Products in any manner whatsoever. Further, by purchasing Branded Products available for sale on the Website, you agree to defend, indemnify and hold harmless at your expense, Optitude LLC and its owners and affiliates for any claim of any nature related to your use of the Branded Products.

 

III. GROWTH ACADEMY PARTICIPATION AGREEMENT

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INTRODUCTION

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Optitude assists founders and CEOs of companies in building capacity for growth. Optitude has developed the online Growth Academy training program (the “Program”) as one of its Products available on the Website, which is designed to train founders and CEOs to increase sales performance and capacity through presentations, lectures, and working sessions. By registering for the Program, you (“Participant”) expressly wish to participate in the Program. The Parties desire to set forth their understanding of their respective duties and obligations.

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THEREFORE, in consideration of the mutual covenants, promises, and conditions contained in this Participation Agreement (“Agreement”), and for good and valuable consideration the adequacy of which is hereby acknowledged, the Parties agree as follows:

 

1. PARTICIPATION AND TERM

 

The Participant agrees to participate in the Program in accordance with the terms of this Agreement. The Term of this Agreement and your participation in the Program will begin when you register on our Website. Our Program schedule dates may change, but the latest information will be posted on the Website. The Program runs for approximately six months from the date the Program begins, unless earlier terminated in accordance with below. The Program meets roughly every week; however, you will be given a schedule and/or syllabus with meeting times, so that you plan appropriately. Typically, one session will be dedicated to training and lecture sessions and the next session is designed to have you engage with the topic and presentations.

 

2. OPTITUDE OBLIGATIONS

 

To assist and encourage the Participant, Optitude will:

 

a. Provide you with a business questionnaire “collaborative diagnosis” and will use your answers to create your initial collaborative diagnosis (the “CD”), which will be provided to you before the start of the Program, identifying your collaborative strengths and areas for improvement;

 

b. Provide 60-90 minute training sessions scheduled throughout the Program;
 

c. Create cohort groups of participants, which will meet periodically throughout the Program after each training session. The groups will be guided by the Company in working through and applying the previous sessions’ materials; and
 

d. Provide tools, templates and other resources that support the Program’s objectives. 

 

3. PARTICIPANT COMMITMENT

The Participant agrees to the following:

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a. To pay a participation fee. Payment options are available at: https://www.optitude.co/growth-academy-benefits

 

If you decide to pay monthly, your first payment will be due when you register for the Program. Once the Program begins, you only need to make five more monthly fee payments. Fee payments are due on the first day of the Term and each subsequent applicable month electronically using the Company’s website payment portal: https://www.optitude.co/growth-academy-benefits. If you set up recurring payments, you agree to have your payment method charged each month.

 

b. To participate fully in all the sessions by:

 

i. Attending all 60-90 minute training sessions;

ii. Attending the guided cohort working sessions;

iii. Not missing more than one session; and

iv. Completing homework outlined in the training sessions and be prepared to discuss business goals, obstacles, and other topics as assigned in the cohort working sessions.

 

c. To agree to be responsive to the Company and to your cohort using email, Slack, and online videoconferencing technology, including timely responses to messages and scheduling requests, emails, and requests for meetings during the Term of the Program.

 

d. To conduct your participation during the Program, business practices, and otherwise act, consistent with the Statement of Conduct (below). 

 

e. To grant permission to Optitude a non-exclusive, irrevocable, fully paid, worldwide right to use your name, likeness, business information, and photograph for the limited purpose of the Company’s marketing communications to advertise, market, and promote Optitude and the Growth Academy Program.

 

f. To notify the Optitude’s Founder and CEO and participate in the dispute resolution process if a dispute arises between you and another Program participant and the participants are unable to resolve the dispute amongst themselves.

 

4. GRADUATES OF THE GROWTH ACADEMY PROGRAM

 

Participants who complete the Program are eligible for a discounted community membership opportunity to receive ongoing educational materials, access to private Slack channel, 1:1 coaching, and other resources and tools. Contact: brian@optitude.co for more information and pricing.

 

5. RELATIONSHIP OF THE PARTIES

 

Each Party shall be independent of, and not an agent, employee, or fiduciary of the other Party.This Agreement does not create a partnership, association, joint venture, or other joint business relationship between the Parties and neither Party has any right or power under this Agreement to create any obligation, expressed or implied, on behalf of the other Party or to bind the other Party in any manner whatsoever.No employee of a Party will be deemed to be an employee of the other Party by virtue of this Agreement.Neither Party shall hold itself out to anyone as an agent of the other Party.Neither Party shall use the other’s name, insignia, picture, or logo without written permission.

 

6. TERMINATION 

 

a. Either Party may terminate this Agreement upon seven (7) days’ written notice to the other Party. 

 

b. Optitude may terminate this Agreement immediately upon notice to the Participant if you breach any of the terms of this Agreement, including without limitation the obligations of Section 3 and the Statement of Conduct on Exhibit A, and such breach(es) are not capable of being cured to the reasonable satisfaction of Optitude.  

 

c. If you terminate this Agreement before the Program begins, you will receive (if you haven’t already) the CD referenced in Section 2(a), and may receive a refund as follows:

 

i. If paid in full, you will receive an 80% refund. The remaining 20% covers the cost to Optitude for creating the CD on your behalf.

 

ii. If paid monthly, there is no refund, and you are not obligated to make any further payments. Your initial payment covers the cost to Optitude for creating the CD on your behalf.

 

d. If you or Optitude terminate this Agreement after the Program begins, you will not receive a refund for any or part of the Term, subject to the limited warranty as described in Section 8.

 

7. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY

 

a. Definition and Optitude Obligations. “Confidential Information” means information Participant has or will develop, acquire, create, compile, discover, or own, that has value in or to the Participant’s business which is not generally known and which the Participant wishes to maintain as confidential. Except for the limited license granted in Section 3(e) of this Agreement, Optitude shall not disclose Participant’s Confidential Information.

 

b. Intellectual Property Ownership. Each Party shall retain all right, title, and interest (including all Confidential Information, copyrights, patents, service marks, trademarks, trade secrets, and other similar rights) in its respective intellectual property. Neither Party shall acquire any interest in the other Party's intellectual property, or any other materials provided by such Party pursuant to this Agreement. Neither Party shall acquire any interest in the other Party’s intellectual property developed during the Program. The handouts and materials given to you by Optitude are for your personal use only and may not be modified, re-sold, or used in any other way without Optitude’s written permission.

 

8. LIMITED WARRANTY AND DISCLAIMERS

 

a. Limited Warranty. Optitude wants you to be satisfied with the Program and requests that you reach out to and talk with the Company’s Founder with your comments or concerns. If during the first two weeks of the program, you believe you are not getting the value you expected, return all materials the Company sent you, and the Company will refund you 100%.

 

Except as expressly provided in this agreement, no representations or warranties will or have been made to the Participant.  In no event is Optitude guaranteeing or promising the Participant’s profitability or business success. 

 

b. Disclaimers. You specifically recognize and acknowledge that the independent business venture undertaken by you depends on your ability as an independent business entity, as well as other factors, such as market and economic conditions, beyond the control of both Optitude and you.  You acknowledge that the success or failure of your business will depend on your business acumen and diligence.  You agree that no default, defect, or omission by Optitude or any of its directors, officers, agents, employees, or related or affiliated parties, in providing and performing the business assistance services shall be deemed to be a default by any of them under this agreement.

 

You agree to accept the services provided by the Program on an “as is” basis with no warranties of any kind, except as expressly provided in this Agreement, and Optitude hereby disclaims, any and all express or implied warranties, including, but not limited to, warranties of merchantability or fitness for a particular purpose.

 

9. LIMITATION OF LIABILITY

 

Neither Optitude nor any of its directors, officers, agents, employees, or related or affiliated parties shall be liable to the Participant in any action or claim for consequential or special damages, loss of profits, loss of opportunity, or loss of use, whether the action in which recovery of damages is sought is based on contract, tort (including sole, concurrent, or other negligence and strict liability), statute, or otherwise to the extent permitted by law.Any statutory remedies which are inconsistent with the provisions of these terms are waived.The Company and its directors, officers, agents, employees, or related or affiliated parties shall not be liable for any indirect, incidental, punitive, special, or consequential damages, or damages for loss of profits or revenue, incurred by you or any third party, in contract, tort (including negligence) or otherwise, even if advised of the possibility of such damages.

 

10. INDEMNIFICATION

 

The Participant hereby agrees to indemnify and hold harmless Optitude and its directors, officers, agents, employees, or related or affiliated parties, against any cost, damage, claim, liability, or expense arising in any manner relating to this Agreement, including Participant’s business, unless caused by the gross negligence or willful misconduct of Optitude.This indemnification will survive the termination of this Agreement.

 

11. NOTICES

 

All notices, consents, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall conclusively be deemed effective: (a) on personal delivery; (b) on confirmed delivery by courier service; (c) on confirmed facsimile or electronic mail transmission; or (d) three days after deposit in the United States mail by first class/certified/registered or certified mail, postage prepaid, addressed to the party to be notified as set forth in this Agreement.

 

12. AUTHORITY

 

Each person signing below warrants that they have the authority to enter into and perform the conditions of this Agreement and to bind themselves and the principal(s) set forth below.

 

13. AMENDMENT AND MODIFICATION

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This Agreement contains the entire understanding of the Parties with respect to the transactions and matters contemplated hereby, supersedes all previous agreements between the Parties concerning the subject matter, and cannot be amended except by a writing signed by both Parties.

 

14. SEVERABILITY AND WAIVER

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If a court of competent jurisdiction finds any provision of this Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

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No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation (or any other term or obligation) or be deemed a waiver of any subsequent breach.

 

15. NO THIRD-PARTY BENEFICIARY

 

This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire any right by virtue of this Agreement.

 

16. ASSIGNMENT AND DELEGATION

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The Parties shall not at any time assign or transfer, or attempt to assign or transfer, any of its rights, interests, or obligations under or in respect of this Assignment to any person; provided that Optitude may assign this Agreement to any successor or any related or affiliated entity that is created to oversee or manage Optitude in whole or part.

 

17. GOVERNING LAW AND DISPUTE RESOLUTION

 

a. Governing Law. This Agreement shall be interpreted according to Colorado law and the jurisdiction for any lawsuit arising under this Agreement shall exclusively be in the courts located in Denver County, Colorado.

 

b. Dispute Resolution. The parties agree to first try to resolve any dispute internally through good faith negotiations upon written notice by one party to the other. Any dispute not resolved within thirty (30) days shall be then submitted to non-binding mediation through a mutually agreeable provider by either party after 30 days of negotiations between the parties. If mediation is unable to resolve the dispute, the dispute shall be arbitrated by an arbitrator mutually selected by the parties or appointed by an independent arbiter. The parties shall bear their own costs under this section, but the prevailing party shall be awarded attorneys’ fees. To the extent allowable by applicable law, all mediation and arbitration proceedings, evidence, findings, awards and other matters related to the mediation and arbitration will remain confidential.

 

18. SURVIVAL

 

In the event of a termination of this Agreement, the following provisions shall be deemed to survive such termination: .Expiration or termination shall not relieve the Parties of any obligation accruing prior to such expiration or termination.

 

19. FORCE MAJEURE

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In no event will Optitude be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation accidents, acts of war, civil or military disturbances, natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that Optitude shall use reasonable efforts resume performance and/or reschedule missed sessions as soon as practicable under the circumstances.          

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20. COUNTERPARTS

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This Agreement may be signed in any number of counterparts, each of which will be deemed an original. The Parties shall be entitled to rely upon and enforce a facsimile or other electronic transmission of any authorized signature as if it were the original.

 

21. GROWTH ACADEMY STATEMENT OF CONDUCT

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Optitude is committed to each Participant’s success and understands that every Participant comes from a different place and has a different story to share.

 

Growth Academy Participants shall adhere to the following:

 

• Be Curious and Open to Learning. Listen to and be open to hearing all points of view. Maintain an attitude of exploration and learning. Conversation is as much about listening as it is about talking.

• Show Respect and Suspend Judgment. Human beings tend to judge one another; do your best not to. Setting judgments and personal bias aside will better enable you to learn from others and help them feel respected and appreciated. This class is intended to be a safe and inclusive space for all participants.

• Look for Common Ground and Appreciate Differences. In this conversation, we look for what we agree on and simply honor that we will disagree on some beliefs and opinions.

• Be Authentic and Welcome that from Others, Share What’s Important to You. Speak authentically from your personal and heartfelt experience. Be considerate to others who are doing the same.

• Be Purposeful and to the Point. Notice if what you are conveying is or is not “on purpose” to the question at hand. Notice if you are making the same point more than once.

• Own and Guide the Conversation. Take responsibility for the quality of your participation and the conversation by noticing what’s happening and actively support getting yourself and others back “on purpose” when needed.

 

Participants who are unwilling to follow these Ground Rules may be asked to leave the program.

• Help others in the group

• Act with honesty and sincerity.

• Be professional.

• Acknowledge errors and mistakes.

• Treat others with respect: this includes their opinions, their feelings, and their time.

• Communicate.

• Practice non-violent communication.

• Be reachable and responsive.

• Avoid gossiping, badmouthing, or any outward hostility toward anyone.

• Be on time.

 

Expulsion Policy: If Participant’s conduct is out of line with the expectations illustrated above, or if Participant does not reliably communicate – including but not limited to follow-ups to emails not being made within a reasonable period of time, repeated failure to notify Optitude of missed sessions, and the like – Optitude has the right to dismiss the Participant for bad conduct, and the Participant may forfeit any benefits they may have been eligible to receive as a participant.