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Last modified: March 15, 2021
These Terms will apply in conjunction with all terms and conditions of any separate Oculogx Services Agreement (collectively, with any valid SOW issued under such Services Agreement, the “Services Agreement”) that is applicable to your use of the Platform. All references to your Services Agreement in these Terms mean and should be read as “your Services Agreement, as applicable.” Not every User will have a Services Agreement, but all Users are subject to these Terms whether or not a User has a separate Services Agreement. In the event of conflict or ambiguity between these Terms and a Services Agreement, the terms of the Services Agreement will control and govern. Capitalized terms that are not defined in these Terms are defined in the Services Agreement.
For the purposes of these Terms, “Services” means the Platform and the services and access described in any applicable Services Agreement.
PLEASE REVIEW THESE TERMS CAREFULLY. BY USING THE SERVICES IN ANY WAY, INCLUDING ONLY BROWSING THE SITE, YOU AGREE TO BE BOUND BY EVERYTHING IN THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT USE THE SERVICES AND YOU SHOULD STOP USING THE SERVICES IMMEDIATELY.
These Terms apply to all parts of the Services. The Terms apply to you and all other users of the Services (“you” and “Users”).
As a general policy, you are exclusively responsible and liable for your use of the Services and for any consequence of your use of the Services. Any exceptions to this policy will be clearly explained in these Terms or your Services Agreement. If you do not see a specific exception listed in these Terms or your Services Agreement, then it is not an exception, and you will be solely responsible. More information is available below.
In exchange for the Services, you agree to pay Oculogx the fees set out in the purchase process via the Platform or your Services Agreement, as applicable. More information is available below.
We may change all or any part of the Services from time to time without notice. We may stop providing all or any part of the Services, or restrict use of all or any part of the Services, without notice and for any reason.
We rely on third-party providers for certain parts of the Services. Because of this and for other reasons, the Services may be unavailable, interrupted, or terminated from time to time for many reasons (including routine maintenance). The parts of the Services that implement third-party products or services may also be subject to the terms, conditions, and policies of the applicable third-party providers. More information is available below.
By using the Services, you agree that Oculogx will not be responsible or liable to you or any third party for any consequence, loss, or damage arising (directly or indirectly) from or relating to any of the circumstances described in this section or the Terms generally, unless specifically described otherwise in these Terms or your Services Agreement.
You must be able to form a binding contract to use the Services. By using the Services, you represent that you are able to do so. Individuals under 13 years old are expressly prohibited from using the Services. Any attempt by a person under the age of 13 to use the Services will be automatically void. If Oculogx receives credible notice that a User is under 13 years old, we will automatically remove the account associated with the User and delete all information about and from that User from the Services.
Oculogx may, in its sole discretion and for any reason, (i) refuse to offer all or any part of the Services to any person or entity, or (ii) change the eligibility criteria for the Services at any time. You may close your account at any time by going to account settings and deactivating your account.
When you use the Services, Oculogx gives you a limited, personal, revocable, non-transferable, and non-exclusive license to use the Services, subject to these Terms and your Services Agreement. This limited license is only so you may use and enjoy the benefit of the Services as provided by Oculogx as allowed under these Terms and your Services Agreement. This license is revocable at will and may be terminated by Oculogx without notice to you, subject to your Services Agreement.
You are solely responsible and liable for all activity that occurs on and through the Services under your name or in connection with your account, with or without your knowledge or consent. THIS SPECIFICALLY INCLUDES ALL PRODUCTS OR SERVICES THAT ARE ORDERED AND PURCHASED THROUGH THE SERVICES. You are solely responsible and liable for safeguarding the security and accuracy of your account and notifying Oculogx of any unauthorized use of your account.
In exchange for the Services and in consideration of our obligations, you agree to pay Oculogx the fees set out in the purchase process via the Platform or your Services Agreement, as applicable, in U.S. dollars. If your use of the Services exceeds the scope purchased via the Platform or set out in your Services Agreement, or otherwise requires the payment of additional fees (per the terms of these Terms or your Services Agreement), you will be billed for such usage and you agree to pay the additional fees in the manner provided in these Terms or your Services Agreement.
You will pay all fees net 30 days from the mailing date of the invoice, unless otherwise set out in your Services Agreement. You will pay a finance charge on any overdue amounts at a rate of 1.0% per month or the maximum rate allowed by applicable law, whichever is lower, from the date the payment was due until the date paid, plus all expenses of collection. Unpaid amounts may result in immediate suspension or termination of Services. Users must dispute fees and charged billed to the User by Oculogx in writing within thirty (30) days from the mailing date of the applicable billing notice. All disputes must specifically describe the details of the dispute. In the event Oculogx does not receive written notice of the dispute within thirty (30) days from the date of the applicable billing notice, the charges will be deemed valid and accepted unless otherwise set out in your Services Agreement. All funds received by Oculogx will be applied to the oldest unpaid balances.
User will be liable for all charges payable in connection with the Services provided to User. Specifically, fees do not include applicable sales, use, or other similar taxes imposed by government authorities, all of which are User’s sole responsibility and will be billed by Oculogx to User or paid directly by User. Other charges may include, without limitation, additional charges required by Oculogx, and all fees, duties, assessments, and fines.
Oculogx reserves the right to amend or adjust charges and to re-invoice User in the following events: (i) if the original quoted amount was based upon incorrect information provided by the User; (ii) if additional Services were required; or (iii) if any third-party passes through any costs to Oculogx in connection with the Services provided to User.
Oculogx may upon 30 days prior notice to User (which may be sent by email) increase the fees for any Services; provided that for a User that has purchased Services for a specific term under the terms and conditions of a Services Agreement, Oculogx may increase fees for Services upon 30 days prior notice at the end of User’s Initial Service Term or then‑current renewal term (which may be sent by email).
You will use the Services only in accordance with these Terms, your Services Agreement, and applicable law. You will have exclusive responsibility and liability for your account. Oculogx is not responsible or liable for any User information or content, or any consequence, loss, or damage (direct or indirect) caused by or related to User information or content.
You must actively monitor the access and use of the Services under or in association with your account. You will be solely responsible for the accuracy, quality, legality, and means of acquiring the information, documents, emails, files, notes, personal data, customer and/or product names, and other content stored or uploaded into the Services by you and under or in association with your account, including any of the foregoing that you provide to Oculogx (collectively, “User Data”).
When you use or provide information on or via the Services, or otherwise use the Services, you represent and warrant that your use:
Oculogx reserves the exclusive right to determine whether your use of the Services falls within any of the Prohibited Use and Content categories listed above. Although we are not obligated to, we may immediately terminate or suspend your account or use of the Services without notice to you in the event that, in our judgment, you violate this section. Accounts created to replace suspended accounts will be permanently suspended. Accounts engaging in any of these behaviors may be investigated for abuse.
Failure to comply with any of the terms and obligations set out in this Section 5 will be a breach of these Terms and your Services Agreements. You agree that Oculogx will not be liable, and you will indemnify, hold harmless, and reimburse Oculogx for any consequence, loss, damage, or expense (direct or indirect) (including attorneys’ fees and settlement amounts) arising from or relating to your failure to comply with any of the terms and obligations set out in this section.
The Services may include advertisements and other marketing messages from Oculogx and its third-party partners. The form and frequency of advertising and marketing messages on the Services may change without notice to you. By using the Services you agree that Oculogx and its third-party partners may advertise on and through the Services.
The Services include certain software services, including, but not limited to, the Platform and other software that enables Users to optimize fulfillment operations and provides data and analytics for those activities (for this section, collectively, “Software Services”). The Software Services include all of the individual elements and various forms of the Software Services and all modifications of, fixes for, and improvements to the foregoing (collectively, “Updates”). Oculogx will provide Updates to Users in its sole discretion at no additional cost.
Oculogx provides you with a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to access and use Software Services for your internal business use only during the term set out in the purchase process via the Platform or your Services Agreement, as applicable.
You may use Software Services through URL(s), user-names, and passwords provided by Oculogx (“Credentials”). Credentials will be issued solely to you, or to the owners or employees identified by you as “Registered Users” for the Software Services. Oculogx will issue one Credential per Registered User. Credentials may not be shared with other Registered Users. You must limit access to Software Services to the number of Registered Users specified in the purchase process via the Platform or your Services Agreement, as applicable. You may not permit access to Software Services to any third party that makes or offers commercially available solutions that are competitive to the Services. You and your Registered Users will safeguard Credentials to prevent both unauthorized access to the Software Services and access that is in violation of these Terms and your Services Agreement. You will promptly notify us of any unauthorized access or use of your Credentials.
You may access and use Software Services solely for internal business purposes. You may not use the Software Services for any Prohibited Use and Content, specifically including, but not limited to, any attempt to sublicense, sell, rent, lease, transfer, assign, or convey the Software Services to any third party, or otherwise commercially exploit or profit from the Software Services in any manner, except for your internal business as expressly permitted by these Terms or your Services Agreement.
If in your Services Agreement, we may integrate the Software Services with User systems and/or third-party applications, including, but not limited to, enterprise resource planning (ERP) systems, shopping cart applications, and warehouse management systems (WMS) (collectively, “Third-Party Applications”), via API or other means to transmit data. Our ability to integrate these systems is subject to compatibility. Integration services not set out in a Services Agreement are available as agreed in writing and are subject to additional fees. Providers of Third-Party Applications may require User to accept additional terms and pay additional fees. If you elect to install or enable Third-Party Applications for use with the Software Services, you grant Oculogx the right to permit the Third-Party Applications access to User Data, as required for the implementation of the Third-Party Applications with the Software Services. Oculogx is not responsible and provides no warranty with respect to Third-Party Applications, the use of User Data by Third-Party Applications, or for the security practices (or any acts or omissions) of the third-party service providers or Third-Party Applications.
As defined in FAR section 2.101, the Software Services and related documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Failure to comply with any of the terms and obligations set out in this Section 6 will be a breach of these Terms and your Services Agreements. You agree that Oculogx will not be liable, and you will indemnify, hold harmless, and reimburse Oculogx for any consequence, loss, damage, or expense (direct or indirect) (including attorneys’ fees and settlement amounts) arising from or relating to your failure to comply with any of the terms and obligations set out in this section.
For Users with a Services Agreement, your agreement with Oculogx with respect to Technical Support Services and Hosting Services is as specified in your Services Agreement.
We provide “Technical Support Services” with the Services as set out in these Terms or in your Services Agreement. Technical Support Services include: (i) periodic Updates from time to time in our solely discretion; and (ii) responding to the technical questions regarding the Services by Registered Users. We provide technical support services on weekdays during the hours of 9:00 a.m. to 5:00 p.m, Central Time (CT), not including holidays. We will respond within a reasonable period of time during normal business hours to technical questions that a User emails. We are not responsible for issues relating to: (i) Third-Party Applications; (ii) User changes to application protocol interfaces; or (iii) User failure to use the Services in accordance with its documentation.
We provide “Hosting Services” for the Software Services so that our Platform is accessible for Registered Users through a third-party hosting infrastructure, 24 hours a day, 7 days a week. We use reasonable efforts to minimize the amount of time the Software Services are unavailable. Users are solely responsible for all Registered Users’ equipment and ancillary services needed to connect to, access or otherwise use the Software Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and similar needs.
You acknowledge and agree that from time to time the Services, including, but not limited to the Software Services and/or the hosting infrastructure, may be inaccessible or inoperable.
Please feel free to contact us with respect to any questions about Technical Support Services or Hosting Services at:
No rights or licenses are granted except as expressly set out in these Terms or your Services Agreement. Except for rights expressly granted under these Terms or your Services Agreement, nothing will transfer any of either party’s intellectual property rights to the other party. Oculogx will exclusively own and retain all right, title and interest in and to (a) the Services and Software Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing (collectively, “Oculogx IP”) You acknowledge that you do not acquire any right, title, interest, or ownership rights in or to Oculogx IP by using the Services.
We acknowledge that all right, title, and interest in and to the User Data will remain exclusively with User; provided however that Oculogx is permitted to (i) aggregate, disclose, and use generalized and anonymized User Data and other information relating to the provision, use, and performance of all aspects of the Services and related systems and technologies (including, without limitation, data derived User Data) without identifying User for any purpose in its sole discretion; and (ii) collect, analyze, and use User Data and other information relating to the provision, use and performance of all aspects of the Services and related systems and technologies (including, without limitation, data derived User Data) for improving and enhancing the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Oculogx offerings.
Nothing in these Terms will prevent Oculogx from developing its own proprietary products, concepts, and other intellectual property, using and transferring any general knowledge, residual information, skills, experience, ideas, concepts, techniques, and know-how from User’s use of the Services, or otherwise, that are acquired, generated, or used by Oculogx in connection with providing the Services under these Terms or a Services Agreement.
Each party will use Confidential Information of the other party only as required in connection with the Services or as expressly required in these Terms or a Services Agreement. Neither party will transfer or disclose the Confidential Information of the other party to any third-party. Each party will take reasonable and adequate precautions to prevent disclosure or use of Confidential Information other than as authorized in these Terms or a Services Agreement. For these Terms, “Confidential Information” means any information from or about one party to the other party that is designated as “confidential,” “proprietary,” or similarly designated, or that a person exercising reasonable business judgment would understand to be confidential based on the circumstances of its disclosure or the nature of the information. Confidential Information includes, but is not limited to, all financial information of Oculogx and User (including but not limited to rates, compensation amounts received for services rendered, volume information), as well as Oculogx and User personnel and contact information, pricing, shipping, storage, and other logistics requirements. Confidential Information does not include information that (i) was possessed by either party, prior to being disclosed; (ii) either party develops independently, without use of or reference to the Confidential Information; (iii) is already public when one party discloses it to the other (other than from a breach of the Agreement); or (iv) is in the possession of the other party as the result of disclosure by a third party not under an obligation to keep that information confidential.
The parties acknowledge that a breach of any Confidential Information obligation could cause irreparable harm for which monetary damages would be inadequate. If any such breach occurs or is threatened, the party who disclosed the Confidential Information will be entitled to seek an injunction, a restraining order, or other equitable remedy. That party will not need to post a bond or other security or provide proof of actual damages.
Oculogx exclusively owns and holds all right, title, and interest in and to the Services and all information and content published by Oculogx via the Services. The Services are currently (or may be in the future) protected by copyright, trademark, patents, trade secrets, and other laws of both the United States and foreign countries. Other than as expressly provided in these Terms or your Services Agreement, you do not have any right to use, copy, or imitate the name “Oculogx,” “OX,” or any of the Oculogx trademarks, logos, domain names, distinctive brand features, or other intellectual property or content, in whole or in part, without our prior written permission.
You grant Oculogx a non-exclusive, limited, revocable license during the term to upload, use, copy, store, transmit and display User Data to the extent necessary to provide the Services to you.
We reserve the right to terminate, suspend, or refuse to provide all or any part of the Services, to suspend or terminate any User, and to reclaim usernames – all at any time and for any reason in our sole discretion, and without liability to you, subject to your Services Agreement.
Feedback, ideas, and suggestions you provide (“Feedback”) about Oculogx or the Services is welcome and is entirely voluntary. You grant Oculogx a perpetual, irrevocable, worldwide license to use any of your Feedback for modifying the Services. This license includes all intellectual property rights in all Feedback, without compensation, without any obligation to report on use, and without any other restriction. We may use Feedback in any and every way, including granting sublicenses.
The rights granted to Users under this Agreement are non-exclusive, unless and only to the extent expressly set out in a separate Services Agreement. Oculogx is not prohibited or limited in any respect from (i) contracting with any other third party for any purpose; or (ii) selling and/or developing any other product and/or service that is similar to, or competitive with, the Services.
User hereby agrees that Oculogx may use User’s name and logo on the Services and in other Oculogx marketing materials.
We will seek to protect your information from disclosure in most instances as a general policy. However, we reserve the right to access, read, preserve, and disclose any User information that we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce these Terms, including investigation of potential violations; (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to User support requests; and (v) protect the rights, property, or safety of Oculogx, our Users, and the public.
These Terms will continue to apply until your use of the Services is terminated by either you or Oculogx. For Users with a Services Agreement, your agreement with Oculogx is for the Initial Service Term as specified in the Services Agreement, and will be automatically renewed for additional periods of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this agreement upon 30 days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms or a Services Agreement. Either party may also terminate this agreement upon written notice to the other party in the event (i) the other party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other party and the petition is not dismissed within thirty (30) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other party discontinues its business; or (v) a receiver is appointed for the other party or its business.
User will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
In addition, the agreement established by these Terms or a Services Agreement may be terminated:
Upon termination of the agreement established by these Terms or a Services Agreement for any reason, User will pay to Oculogx in full for the Services up to and including the last day on which the Services are provided and all other amounts due and owing as of the date of termination. In addition, if a specific term length is set out in the purchase process via the Platform or your Services Agreement, User will also pay to Oculogx in full all amounts due for the remaining specified agreement term, and/or any other mandatory or minimum charges or fees set out in the purchase process via the Platform or in a Services Agreement. Upon any termination, Oculogx will make all User Data available to User for electronic retrieval for a period of thirty (30) days, but thereafter Oculogx may, but is not obligated to, delete stored User Data.
Subject to your Services Agreement, Oculogx may suspend or terminate your accounts (or quit providing you with all or part of the Services) at any time for any reason, including, but not limited to, our belief that: (i) you have violated these Terms, your Services Agreement, or other published policies, (ii) you create risk of or possible legal exposure for Oculogx; or (iii) the Services are no longer commercially viable.
In all such cases, your license to use the Services will automatically be canceled, except that the following sections will continue to apply: 2, 4, 5, 6, 8, 10, 11, 12, 13 and 14, as well as any other provision that would logically survive termination or expiration.
PLEASE READ THIS SECTION CAREFULLY. This section limits the liability of Oculogx and its past, present, and future parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Oculogx Entities”). BY USING THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY THIS SECTION. Each subsection below applies to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of certain warranties or the limitation of liability in contracts, and, as a result, the contents of these sections may not apply to you.
Oculogx has no fiduciary or special relationship with you. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Oculogx will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and will perform the Implementation Services, if any, in a professional and workmanlike manner.
Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Oculogx or by third-party providers, or because of other causes beyond Oculogx’s reasonable control, but we will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, OCULOGX does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
To the maximum extent permitted under applicable law, except as expressly set out in these Terms and your Services Agreement, THE OCULOGX ENTITIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SECURITY, ACCURACY, AND ANY WARRANTIES IMPLIED BY PERFORMANCE OR USE. OCULOGX DOES NOT WARRANT THAT THE SOFTWARE SERVICES ARE ERROR-FREE. THE SOFTWARE SERVICES MAY ALSO BE SUBJECT TO INTERRUPTIONS AND DELAYS INHERENT IN THE USE OF THE INTERNET.
The Oculogx Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security, or reliability of the Services; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (iii) the deletion of, or the failure to store or to transmit, any information and other communications maintained by the Services; (iv) whether the Services meet your requirements or are available on an uninterrupted, secure, or error-free basis; and (v) any third-party claims, consequence, loss, or damage (direct or indirect) arising in any way out of or related to use of the Services or these Terms or your Services Agreement. No advice or information, whether oral or written, obtained from the Oculogx Entities or through the Services, will create any warranty not expressly made in these Terms or your Services Agreement.
IT IS THE EXCLUSIVE RESPONSIBILITY OF EACH USER TO EVALUATE THE ACCURACY, COMPLETENESS, DEPENDABILITY, USEFULNESS AND MARKETABILITY OF ANY PRODUCT, SERVICE, SOFTWARE, CONTENT, OR INFORMATION AVAILABLE THROUGH THE SERVICES OR OBTAINED FROM ANOTHER USER, THIRD PARTY, OR LINKED SITE.
The Services may contain promotion of or links to third-party websites or resources. Except as expressly set out on the Services, you acknowledge and agree that the Oculogx Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; (ii) the content, products, or services on or available from such websites or resources; and (iii) any consequence, loss or damage (direct or indirect) arising from such websites or resources. Inclusion of printed materials about or links to such websites or resources do not imply endorsement by the Oculogx Entities of the websites, resources, or the content, products, or services available from the websites or resources. You acknowledge sole responsibility for and assume all risk of your use of any third-party website or resource.
Oculogx relies on third-party providers and partners for parts of the Services, including, but not limited to, the Hosting Services. Oculogx also may from time to time in its discretion engage third parties to perform Services. Except as expressly set out on the Services, you acknowledge and agree that the Oculogx Entities are not responsible or liable for: (i) the availability, functionality, or accuracy of the parts of the Services provided by third-party providers and partners; (ii) any interruption, delay, suspension, or termination of the Services as a result of third-party providers and partners; and (iii) any consequence, loss, or damage (direct or indirect) arising from third-party providers and partners. On written request by a User, Oculogx will provide (within a reasonable time) a list of the non-confidential third-party providers and partners that are used for the Services. Without limiting the generality of the foregoing, USER ACKNOWLEDGES THAT OCULOGX IS NOT RESPONSIBLE FOR ANY INTERRUPTIONS OR DELAYS CAUSED BY ITS OR USER’S INTERNET SERVICE PROVIDERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OCULOGX ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUE, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES FOR OR UNDER ANY CIRCUMSTANCE. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR BODILY INJURY TO A PERSON, THE OCULOGX ENTITIES WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES; (ii) FOR ANY CONDUCT OR CONTENT OF ANY USER OR THIRD PARTY ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE AND DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) FOR ANY PRODUCTS PURCHASED, USED, OR ACCEPTED VIA THE SERVICES, OR CONTENT OBTAINED FROM THE SERVICES; (iv) FOR UNAUTHORIZED ACCESS, USE, OR ALTERATION OF THE SERVICES; (v) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (vi) FOR ANY MATTER BEYOND THE OCULOGX ENTITIES’ REASONABLE CONTROL; OR (vii) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY USER TO OCULOGX FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
User’s sole and exclusive remedy for a breach of the limited warranty described in this section will be, at Oculogx’s sole option, (i) re-performance or re-provision of the non-conforming Services; or (ii) a refund of the pro rata amount of the fees for the non-conforming Services. IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE OCULOGX ENTITIES EXCEED THE GREATER OF ONE THOUSAND U.S. DOLLARS (U.S. $1,00.00) OR THE AMOUNT YOU PAID OCULOGX, IF ANY, FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING REMEDY WILL CONSTITUTE THE OCULOGX ENTITIES’ SOLE LIABILITY AND OBLIGATION WITH RESPECT TO ANY CLAIM BY YOU.
Any claim that Services do not comply with the limited warranty set out in this section must be reported to Oculogx in writing and within twenty four (24) hours of learning of the non-conformance. After such time, all warranty claims are void, and all corrective Services requested by User will be considered and billed to User as new Services, at negotiated rates, and subject to scheduling availability of Oculogx personnel. The availability of this warranty does not relieve User of its obligations for timely payment under this Agreement.
THE LIMITATIONS OF THIS SUBSECTION WILL APPLY TO ALL THEORIES OF LIABILITY, WHETHER BASED ON PERSONAL INJURY, PROPERTY DAMAGE, WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE OCULOGX ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET OUT IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Oculogx will hold User harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Oculogx is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Oculogx will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Oculogx, (ii) made in whole or in part in accordance with User specifications, (iii) that are modified after delivery by Oculogx, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where User’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Oculogx to be infringing, Oculogx may, at its sole option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for User a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate the agreement with User and User’s rights under the agreement and provide User a refund of any prepaid, unused fees for the Services.
By using the Services, to the maximum extent permitted by applicable law, you agree to indemnify, hold harmless, and reimburse Oculogx and its past, present, and future officers, directors, employees, agents, representatives, partners, and all other affiliates harmless for all claims and liabilities (actual and threatened), obligations, settlements, losses, expenses, debts and damages (including costs and attorneys’ fees) (collectively, “Claims”) that arise from or relate to (i) your breach of any part of these Terms or your Services Agreement, including, but not limited to, any activity and content associated with your account (whether by you or a third party), (ii) any allegation that any materials you submit to us or through the Services infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (iii) your activities in connection with the Services or other websites to which the Services are linked; and/or (iv) your negligent or willful misconduct; unless a court of competent jurisdiction enters a final judgment that the Claim was the result of affirmative and intentional actions or omissions by Oculogx. You agree to promptly notify Oculogx of any third-party Claims arising from or relating to your use of the Services. Oculogx reserves the right to assume exclusive control of and direct the defense or settlement of any Claim otherwise subject to indemnification by you. You agree to assist and cooperate with Oculogx in the defense upon request.
The failure of Oculogx to enforce any right or term of these Terms will not be a waiver of the right or term. In the event that any term is held to be invalid or unenforceable, then that term will be limited or eliminated to the minimum extent necessary, and the remaining parts of these Terms will stay in full force and effect. In such an instance, the parties agree that a court should give effect to the parties’ intentions as reflected in the term.
These Terms and any dispute related to the Terms will be governed by the laws of Delaware without regard to conflicts of law principles. Subject to the dispute resolution terms set out in Section 14.C below, all claims, legal proceedings or litigation arising in connection with the Services will be brought exclusively in the federal or state courts located in Benton County, Arkansas, United States, and you consent to the exclusive jurisdiction and venue of those courts.
You agree that you will notify Oculogx in writing of any dispute or problem related to the Services. Oculogx will have thirty (30) days to address the dispute or problem before you may file any legal action. The notice should be addressed to Oculogx Inc. 700 SE 5th Street, Bentonville, AR 72712.
To ensure the timely and economical resolution of disputes that may arise between the parties, any dispute arising from or relating to the subject matter of these Terms that is not voluntarily resolved by the parties pursuant to the previous paragraph must be finally settled by arbitration in Benton County, Arkansas, by JAMS, Inc. (“JAMS”) or its successor, under the then applicable JAMS Comprehensive Arbitration Rules & Procedures. Judgment on or enforcement of the arbitration award may be entered in any court having jurisdiction. Any arbitration under this Agreement will take place on an individual basis: CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. BY USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the previous obligations, each party will have the right to start an action at any time for injunctive or equitable relief in the mandatory jurisdiction and venue established above.
In any action or proceeding of any type to enforce rights under the parties’ agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
By using the Services, you agree to receive all communications related to your use of the Services in electronic form, including, but not limited to, emails sent to the email address associated with your account and/or your Services Agreement, and/or posted notices on the Services. By using the Services, you agree that all agreements, notices, disclosures, and other communications that are provided electronically will satisfy all legal requirements that communications be in writing. All notices from Oculogx will be deemed effective when sent to the email address associated with your account or your Services Agreement, or when posted publicly on the Services.
Certain services offered on the Services may require you to enter into a separate agreement and/or be subject to additional terms specific to that service.
If these Terms conflict with any other agreements or documents, these Terms will control unless specifically set out in such other agreement or document; provided that in the event of conflict or ambiguity between these Terms and a Services Agreement, the terms of the Services Agreement will control and will take precedence in the interpretation of the rights and obligations of the parties.
If you access the Services through a third-party application method, you acknowledge that our Agreement with you is between you and Oculogx only, and not with another application service or application platform provider (like Apple, Inc. or Google Inc.), which may provide you the application subject to its own terms.
The agreement established by these Terms is made for the sole benefit of the parties and their successors and permitted assigns. Except as expressly provided in these Terms, no other person or entity is intended to or will have the rights or benefits under these Terms, whether as third-party beneficiaries or otherwise. None of the Terms, nor any right, obligation, or remedy under the Terms is assignable, transferable, or sublicensable by you except with our prior written consent. Any attempted assignment, transfer, or sublicense without our prior written consent is null and void. Oculogx may assign, transfer, or delegate these Terms or any right or obligation or remedy under these Terms in its sole discretion
We may revise these Terms from time to time without notice to you. The most current version will always be at the following link: https://getox.com/terms. We may choose in our sole discretion to also notify you by email as a courtesy, but we are not required to. Any changes to the Terms will be effective on a going forward basis. By continuing to use the Services after revisions are effective, you will be bound by the revised Terms. If you do not agree with any updates to these Terms, you may not continue to use the Services. Be sure to return to this page periodically to ensure you are familiar with the most current version of these Terms.
General Notice. These Services are operated and provided by Oculogx Inc., 409 SW A St., Bentonville, AR 72712. If you have any questions about the Services or these Terms, please contact us at email@example.com or by writing to our mailing address.
Notice for California Users. Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: These Services are operated and provided by Oculogx Inc., 409 SW A St., Bentonville, AR 72712. If you have any questions about the Services or these Terms, please contact us at firstname.lastname@example.org or by writing to our mailing address. California residents may reach the Consumer Assistance Unit of the Consumer Information Division of the California Department of Consumer Affairs, which may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 or hearing impaired persons may dial 711, 1-800-735-2929 (TTY), or 1-800-735-2922 (Voice) for California Relay Service.
Please feel free to contact us with respect to any questions about the Services or these Terms at:
By registering for and/or using Services in any manner, including but not limited to visiting or browsing the Oculogx Site or using the Platform, you agree to and will be bound by all of the terms and conditions contained in these Terms, and all additional terms, conditions, rules, policies, and/or procedures that may be published by Oculogx from time to time on or through the Services, each of which is incorporated by reference and may be updated by Oculogx at any time without notice to you. These Terms apply to all users of the Services without exception.
Effective: March 15, 2021
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