IMPORTANT-PLEASE READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AND OSI EXPRESS, INC., A CALIFORNIA CORPORATION, REGARDING THE OSI EXPRESS SOFTWARE WEBSITE. AS USED HEREIN, "WE," "US," "OUR" AND "OSI" SHALL MEAN OSI EXPRESS, INC.; "YOU" AND "YOUR" SHALL MEAN THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES SOFTWARE AND MARKETING OFFERED BY OSI.
BY REGISTERING AS A USER OF OSI, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS. YOU ARE PERMITTED TO USE, REPRODUCE AND DISTRIBUTE MATERIALS OFFERED BY OSI AS SET FORTH BELOW ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THESE TERMS OF SERVICE (THE "AGREEMENT").
IF YOU CLICK THE "Agree To Terms - Continue" BUTTON, YOU INDICATE YOUR AGREEMENT TO THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE, OR DO NOT HAVE AUTHORITY TO AGREE, TO THESE
TERMS, PLEASE DO NOT CLICK THE "Agree To Terms - Continue" BUTTON AND EXIT REGISTRATION AND CEASE USE OF SOFTWARE AND MARKETING OFFERED BY OSI. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND TO BIND THE COMPANY TO ALL OF THE TERMS AND CONDITIONS HEREOF. ANY USE, REPRODUCTION OR DISTRIBUTION OF ANY MATERIALS ON THIS WEB SITE BY YOU OR BY A THIRD PARTY ON YOUR BEHALF CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.
1. OPENING USER ACCOUNT; LOGIN AND PASSWORD.
1.1 To open a user account, you must complete the registration process by providing OSI with current, complete and accurate information as prompted by the registration form. In registering for the user account, you agree to submit accurate, current and complete information about you and your company, and promptly update such information. Should OSI suspect that such information is untrue, inaccurate, not current or incomplete,
OSI has the right to suspend or terminate your usage of the user account.
1.2 Upon registration, you will create a user name and personal password. You will be responsible for keeping your user name and password confidential. You will notify us immediately upon learning of any unauthorized use of your user name or password. OSI cannot and will not protect you from the unauthorized use of your user name and password. You will be responsible for all activities and charges incurred through the use of your user name and password, and any claims, liability, damages, losses and costs (including reasonable attorneys' fees) resulting from the unauthorized use of your password. Notwithstanding the preceding sentence, you will not be responsible for any activities, charges, claims, liabilities, damages, losses or costs (including reasonable attorneys' fees) that arise from the unauthorized use of your password directly resulting from a grossly negligent act or omission or willful misconduct of OSI.
1.3 Access: OSI Express Software is a web based software program. OSI has provided the ability to login to the software via a website with reasonable and customary computer and internet requirements. However, you understand and acknowledge that if you, your affiliates or employees of your company have placed any computer or internet restrictions, OSI does not warrant proper access to software if the inability to correctly access software has resulted from restrictions placed by you, your affiliates or employees of your company.
2. GENERAL USE PROVISIONS.
2.1 All materials provided by OSI, including information, documents, products, logos, graphics, sounds, images, Software (as further defined below) and services (hereinafter, "Materials"), are provided either by OSI or by its respective third party manufacturers, authors, developers and vendors ("Third Party Providers") and are the copyrighted work of OSI and/or its Third Party Providers. As used herein, the term "Materials" shall not include the Data provided by and generated by you as referenced in Section 5, below. Third Party Providers are intended third party beneficiaries of this Agreement and may enforce the terms of this Agreement against you.
2.2 Subject to the terms and conditions herein, OSI hereby grants you a non-exclusive, non-sub licensable, non-transferable license to use, reproduce and distribute the OSI Materials provided that: (1) the intellectual property notices identified in Section 17 below appear in the Materials; and (2) the use, reproduction, and distribution of such Materials is solely for your own business use, including dissemination to your actual or potential clients or customers, and will not otherwise be distributed, transferred, assigned, provided, or displayed to third parties, posted on any networked computer, mirrored on any third party server or broadcast in any media.
2.3 Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, transferred, assigned or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of OSI or the appropriate Third Party Provider. Except where expressly provided otherwise by OSI, nothing on this Web Site shall be construed to confer any license to any of OSI's or any Third Party Provider's intellectual property rights, whether by estoppel, implication, or otherwise.
3. LINKS TO THIRD PARTY SITES; THIRD PARTY INTERACTION.
3.1 This Web site may contain links to web sites controlled by parties other than OSI. OSI is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party web sites or any transactions completed through such sites. OSI is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by OSI of the linked web site, notwithstanding the inclusion on such site of the trademarks of OSI or its Third Party Providers. It is your responsibility to take precautions to ensure that whatever materials you select for your use is sufficient for your purposes and is free of viruses or other items of a destructive nature.
3.2 Materials provided by Third Party Providers on this Web Site have not been independently reviewed, tested, certified, or authenticated in whole or in part by OSI. OSI does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by OSI. Any correspondence with, purchase of goods or services from, participation in third party promotions of such Third Party Providers is solely between you and the applicable Third Party Provider.
4. SOFTWARE USE RESTRICTIONS.
4.1 Any software that may be made available to access from this Web Site ("Software") is the copyrighted work of
OSI and/or Third Party Providers. Use of the Software is governed by this Agreement, including the terms set forth in this Section ("Software Use Restrictions"). For purposes of this Agreement, "Software" also includes the third party computer software and/or materials provided with or incorporated into the Software, and any related materials or documentation thereto.
4.2 You and anyone acting on your behalf may not (a) modify, adapt, translate, reverse engineer, decompile, disassemble, derive source code, create derivative works based on, or copy the Software (except as stated above) or the accompanying documentation, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (b) rent, sublicense, loan, transfer, provide, display, distribute or grant any rights in the Software in any form to any party other than employees of your company or any entity that your company has legally registered as a DBA; (c) use the Software for any purpose other than to support your own use which may include co-branding or displaying of your client’s information along with yours; (d) use the third party computer software or materials provided with or incorporated in the Software as stand alone applications or other than with the individual software programs for which they are licensed; (e) remove any proprietary notices, labels or marks in or on the Software; (f) use the Software on any unsupported platform; or (g) use, copy, modify or transfer the Software or any copy, in whole or in part, except as expressly provided in this Agreement.
4.3 Title and copyrights in and to the Software, and any copies thereof, are owned by and remain with OSI and/or its third Party Providers.
4.4 Corporate and Multi-User License - the number of loan officer accounts allowed is limited to the number of user seats included with the account purchased as stated on OSI's website at the time of purchase.
4.5 Single Loan Officer License - Unless OSI has provided written documentation that states otherwise, single loan officer membership accounts (a) require the full name of the loan officer or licensee represented; and (b) do not permit the loan officer's or licensee's full name to be removed; and (c) do not permit the loan officer's or licensee's full name to replaced by any name other than the original full name that appeared in the member's account settings.
5. USER DATA.
5.1 OSI does not own any Data that you post onto your user account, unless we specifically tell you otherwise beforehand. For the purpose of this Agreement, "Data" means information, data, text, photographs, graphics, messages or other materials, whether publicly posed or privately transmitted. OSI will not monitor or disclose any information regarding you or your account, including any of your Data, without your prior permission except in accordance with this Agreement. OSI may access your account to respond to support related issues.
5.2 If a dispute arises regarding the rights to access to a user account, OSI at its sole discretion may give access to an authorized officer of the company listed as the employer of the primary contact upon written request from such officer on company letterhead or, among other options, withhold disclosure of the user account information to any person until it receives an order of the court. If the named company on a user account is not a legal entity, OSI may presume that the primary contact named on the user account is the only person authorized to access the account.
5.3 If a dispute arises regarding the rights to access to a user account, OSI at its sole discretion may give access to an authorized officer of the company listed as the employer of the primary contact upon written request from such officer on company letterhead or, among other options, withhold disclosure of the user account information to any person until it receives an order of the court. If the named company on a user account is not a legal entity, OSI may presume that the primary contact named on the user account is the only person authorized to access the account.
5.4 SUBMISSIONS. You hereby grant to OSI a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit any and all comments, feedback, information or materials regarding the Software and Web Site that you or your agents submit to OSI. You acknowledge that you are responsible for the Submissions that you provide, and that you, not OSI, have full responsibility for the Submissions.
6. HTML EMAIL MARKETING TOOL.
6.1 Third-Party Services - The HTML Email Marketing services provided to you under this Agreement include certain services developed, provided or maintained by third-party service providers (“Third Party Providers”). Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against you in the case of any breach of those terms.
6.2 Warranties - You represent, warrant, and covenant that: (1) you have the legal right and authority to enter into this Agreement; (2) you have the legal right and authority to perform obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement you enter into in connection with any of the services provided under this Agreement; (3) all Content you email is in compliance with the terms of this Agreement; and (4) you will access and use the services provided under this Agreement is in compliance with the terms of this Agreement.
6.3 Disclaimer - THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO YOU BY OSI UNDER THIS AGREEMENT. ALL THIRD PARTY SERVICES ARE PROVIDED BY EACH THIRD PARTY PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” AND ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL THIRD PARTY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OSI OR ANY THIRD PARTY PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF THIRD PARTY PROVIDER.
6.4 Indemnification - You agree to and hereby do indemnify, defend, and hold harmless OSI, its Third Party Providers and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from you accessing or using the services provided under this Agreement (including any Third Party Services) or from any email or other communication generated or sent through such services or any content contained therein, whether or not in breach of this Agreement.
6.5 Limitation on Liability - YOU AGREE THAT RESPONSIBILITY AND LIABILITY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT IS STRICTLY WITH YOU. OSI AND NO THIRD PARTY PROVIDER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THIRD PARTY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER FORM DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF ANY THIRD PARTY PROVIDER WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.6 Data Privacy - OSI and its Third Party Providers will have the right to collect, extract, compile, synthesize, and analyze data and information resulting from or relating to the use or operation of the services under this Agreement (“Service Data”). Any Service Data collected by OSI or any Third Party Provider will be owned by the party collecting the Service Data and may be used by that party for any lawful business purpose without a duty of accounting to you. OSI and its Third Party Providers will not share or publish any personal customer information added by you for the purposes of marketing to your customers. You consent to the use and disclosure of personally identifiable and other data and information as described in this Agreement.
6.7 Content - You will be responsible for all data, information and other content (“Content”) provided by you in connection with the services provided under this Agreement. You will not provide and will not permit any third party to provide or to use the services provided under this Agreement to provide, any Content that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; or (d) is false, misleading or inaccurate. OSI and its Third-Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content. OSI and its Third Party Providers may take remedial action if any Content violates this Section, however OSI and its Third Party Providers are under no obligation to review any Content for accuracy or potential liability.
6.8 License Grant - You grant to OSI and its Third Party Providers all necessary rights and licenses in and to all Content necessary for OSI and its Third Party Providers to provide the services under this Agreement. You will maintain an adequate back-up of all Content and OSI and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content. You represent and warrant that you have all necessary right, title, interest and consent necessary to allow OSI and its Third Party Providers to use all Content as set forth in this Agreement and as otherwise necessary to provide the services under this Agreement.
7. TERM AND CANCELLATION POLICY.
7.1.1 Monthly Agreements - The term of this Agreement (i.e., your subscription to use the Software, Web Site, HTML Email Marketing Tool and the Materials) is 30 days. Subject to the terms herein, all subscriptions shall automatically renew for additional, consecutive 30 day period. You may elect to cancel this Agreement effective as of the last day of the then-current term of this Agreement at any time prior to such date by delivering written notice to OSI which will stop all future charges. 30 day minimum billing required. You understand that you will not receive any prorated refund when you cancel.
7.1.2 Annual Agreements - The term of this Agreement (i.e., your subscription to use the Software, Web Site and the Materials) is 12 months. Subject to the terms herein, all subscriptions shall automatically renew for additional, consecutive 12-month periods. You may elect to cancel this Agreement effective as of the last day of the then-current term of this Agreement at any time prior to such date by delivering written notice to OSI.
7.2 In the event that you breach, or any person or entity acting on your behalf breaches, any of the terms of this Agreement, including, without limitation, the failure to make any required payments on a timely basis, or an initiation of a credit card dispute wherein the outcome of your credit card dispute is found in favor of OSI by your credit card company, thus constituting a fraudulent credit card dispute on your behalf, OSI may (a) immediately bill your credit card or withdraw funds out of your authorized bank account for the remainder of your 12 month agreement, or (b) suspend your access to the Software, Web Site and the Materials without notice, or (c) immediately terminate this Agreement (and the licenses granted to you herein), without any obligation to refund any fees or charges that you paid in advance, or (d) immediately both (b) and (c). In the event of a suspension of your access to the Software and Web Site or termination of this Agreement because of your breach, you will continue to be responsible for the payment of all fees and charges pursuant to this Agreement through the last day of the then-current 12-month term of this Agreement. This Agreement and the licenses granted to you under this Agreement shall terminate automatically without notice upon your filing of a petition for bankruptcy.
7.3 OSI further reserves the right to terminate this Agreement for any or no reason upon delivery of written notice to you, subject to its obligations to you pursuant to Section 7.5 below.
7.4 Upon notice of cancellation under Section 7.1, (a) you must immediately cease using the Materials, (b) all of the rights granted
to you hereunder shall immediately cease, and (c) you must promptly destroy or erase all copies (including back-up copies) of the Materials.
7.5 Provided that you are not in breach of this Agreement, upon termination of this Agreement by OSI pursuant to Section 7.3 above, OSI will refund any prepaid charges for the remaining whole months left in the term of your subscription, starting within one month of the termination. OSI shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party.
7.6 The following sections of this Agreement shall survive the termination of this Agreement for any reason: 1.2, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, and 16.
8.1 You will pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time the fee or charge is due and payable. Fees and charges do not include tax and, where applicable, you agree to pay any sales, use, property, value-added, withholding or other taxes that may be assessed in connection with such fees or charges. Notwithstanding any provisions to the contrary, the legal entity on whose behalf an individual has registered onto this Web Site shall be jointly and severally liable for the activities of, including all fees and charges incurred by, said individual on this Web Site.
8.2 OSI will automatically bill your credit card or withdraw funds out of your authorized bank account at the beginning of the billable time period on an annual basis or monthly basis depending on the membership you choose. In the event that OSI is unable to charge your credit card account or withdraw funds from your authorized bank account for any reason when payment is due, or you otherwise fail to make any payment when due, OSI shall have the rights described in Section 7.2 above.
8.3 Yearly membership - If you choose to pre-pay the year for a single loan officer, branch license or other corporate account, and agree to these terms and conditions, you understand and acknowledge that (a) your payment is final without any opt out or refund period for your initial yearly payment and annual renewal payment, (b) your membership has a 12 month minimum billing period, and (c) as long as your membership remains current without any lapse in membership, your annual renewal amount will remain the same as stated during your original purchase date.
9. DISCLAIMER. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY OSI, THE MATERIALS ON THE WEB SITE, INCLUDING BUT NOT LIMITED TO SOFTWARE, ARE PROVIDED "AS IS", AND ARE FOR COMMERCIAL USE ONLY. WITH REGARD TO SUCH MATERIALS, OSI AND THE THIRD PARTY PROVIDERS MAKE NO WARRANTY REGARDING USE OR PERFORMANCE, AND HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. OSI AND THIRD PARTY PROVIDERS DO NOT WARRANT WITH RESPECT TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE MATERIALS. OSI AND THE THIRD PARTY PROVIDERS SHALL HAVE NO LIABILITY FOR ANY VIRUSES RELATED TO THE MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OSI AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT (A) THE MATERIALS WILL MEET YOUR REQUIREMENTS; (B) THE MATERIALS WILL OPERATE OR BE USABLE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA; (C) THE OPERATION OR USE OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE; OR (D) ANY PROGRAM ERRORS WILL BE CORRECTED. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE MATERIALS ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. OSI AND THE THIRD PARTY PROVIDERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY OF THE MATERIALS CONTAINED ON THIS WEB SITE.
10. LIMITATION OF LIABILITY. OSI AND THE THIRD PARTY PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING OR DOWNLOADING THE MATERIALS. IN NO EVENT SHALL OSI OR THIRD PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER ARISING, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY MATERIALS AVAILABLE FROM THIS WEB SITE, EVEN IF OSI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THIS WEB SITE AND YOU WILL NOT MAKE A CLAIM AGAINST OSI FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, LOST PROFITS, OR LOST OPPORTUNITIES RESULTING FROM THE USE OF THE MATERIALS. WITHOUT DIMINISHING THE GENERALITY OF THE FOREGOING, IN NO CASE SHALL OSI'S LIABILITY TO YOU UNDER ANY CAUSE OF ACTION EXCEED THE TOTAL AMOUNT THAT YOU HAVE PAID TO OSI FOR MATERIALS DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION.
11. INDEMNITY. You agree to indemnify and hold OSI and the Third Party Providers harmless from, and you covenant not to sue OSI or Third Party Providers for, any claims based on or related to (a) your negligence, error, omission or willful misconduct, (b) your breach of any terms of this Agreement, (c) any claim by a third party that OSI, due to your use of the Materials, is liable for contributory infringement of a copyright, patent, trade secret, or other proprietary right of a third party, provided that this indemnity will not apply to any claim to the extent the Software delivered by OSI infringes on a proprietary right of a third party, (d) any claim by a third party that OSI, due to your use of or inability to use the Materials, is liable to a third party in tort or under statutory liability, including, without limitation, defamation, invasion of privacy, spamming or similar theories of law, (d) your use of the Software, Web Site or the Materials, except to the extent due to OSI's gross negligence or willful misconduct.
12. MODIFICATIONS. OSI and the Third Party Providers may make improvements and/or changes in the products, services, Software, and prices described in this Web Site at any time without notice. OSI may make changes to the terms and conditions of the this agreement or other policies relating to the usage of the Web Site at any time and shall notify you by posting an updated version of the policies on the Web Site at least 30 days prior to the implementation of such change. You are responsible for regularly reviewing the policies. Your continued use of Software and Web Site after any such changes constitute your consent to such changes.
13. NOTICE. OSI may give notice by means of a general notice on the Web Site, electronic mail to your e-mail address on record in OSI's account information. You may give notice to OSI (such notice shall be deemed given when received by OSI) at any time by any of the following: electronic mail to mailto:customercare@OSIexpress.com .
14. GENERAL. This Web Site may include inaccuracies or typographical errors. The section headings are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. As used in this Agreement, the word "including" means "including but not limited to." No joint venture, partnership, employment or agency relationship exists between you and OSI as result of this Agreement or through the use of this Web Site. No alteration, amendment, or modification of any of the provisions of this Agreement shall be binding unless made in writing with express reference to this Agreement, and signed by a duly authorized representative of each party. The failure of OSI to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by OSI in writing. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and remaining provisions will remain in full force and effect. OSI shall not be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, earthquakes, fires, floods, labor disturbances, riots, or war. This Agreement will be governed by Colorado law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any and all disputes, actions, claims, or causes or action related to or in connection with this Agreement or the Web Site shall be brought in the federal and state courts located in Denver, Colorado. This Agreement and any Customer Sales Agreement represent the entire understanding relating to the use of the Web Site and prevails over any prior or contemporaneous, conflicting or additional communications, including statements on the Web Site. OSI has the right to assign or transfer this Agreement to a third party which acquires substantially all of the assets of OSI connected with the Web Site. You may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, or any interest in or under this Agreement without OSI's prior written consent and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment.
15. INTELLECTUAL PROPERTY NOTICES. You hereby acknowledge the following proprietary notices and legends: Elements of the Web Site are protected by copyright, trademark and other intellectual and industrial property laws and may not be copied or imitated in whole or in part except as provided in this Agreement. No logo, graphic, sound or image from the Web Site may be copied or retransmitted unless expressly permitted by OSI. OSI, the OSI logo, and/or other OSI brand names for products or services referenced herein are trademarks of OSI and may be registered in certain jurisdictions.
16. Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of California shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be Orange County, California.
17. CONTACT INFORMATION. If you have any questions about this Agreement, please contact OSI Customer Service Department at (866)674-1999 or mailto:customercare@OSIexpress.com
Copyright OSI EXPRESS, INC.
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