Welcome, and thank you for your interest in OVTLYR, Inc. (“OVTLYR,” “we,” or “us”) and our website at www.ovtlyr.com, along with our related websites, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and OVTLYR regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND OVTLYR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
I. OVTLYR Service Overview
The Service allows users to view OVTLYR’s proprietary scores, measurements, charts, graphs, and other analytical data for certain investments (the “Behavioral Analytics”). OVTLYR develops the Behavioral Analytics by using machine learning to model and analyze data relating to the trends, prices, and volatility of financial markets, individual stocks, and specific industries. Using integrations with third-party services, users may be able to link their brokerage account with the Service to view the Behavioral Analytics associated with their current holdings and investments.
NO INVESTMENT ADVICE. The information available through the Service is for general informational purposes only and references to specific securities, investment programs or funds are only for illustrative or educational purposes. No portion of the Service is a solicitation, recommendation, endorsement, or offer by OVTLYR or any third-party service provider to buy or sell any securities or other financial instruments. You should not construe any such information or other material on the Service as legal, tax, investment, financial, or other advice. OVTLYR is not a fiduciary by virtue of any person’s use or access of the Service. You alone assume the sole responsibility of evaluating the merits and risks associated with your use of any information on the Service. Nothing herein constitutes an offer or a solicitation for the purchase or sale of any security to any person in any jurisdiction in which such an offer or solicitation is not authorized. All purchases and sales of securities must and are made through a registered securities broker or dealer of your choosing with whom you have a contractual relationship and have agreed to and accepted such broker’s or dealer’s terms and conditions.
BEHAVIORAL ANALYTICS DISCLAIMER. The Behavioral Analytics provide simulated or hypothetical performance results, which is intended for informational purposes only and may not represent actual trading. The Behavioral Analytics available on the Service should not be considered as a recommendation to buy, sell or hold any security or use any trading system. You understand that OVTLYR is not responsible for any losses that may result from whatever action you elect to take based on your use of the Services and the Behavioral Analytics. The Behavioral Analytics use different types of systems or algorithms which can have certain risks if you elect to use them. The Service assumes that trades occur with at least one share with no consideration for partial fills, nor increased market order slippage. Therefore, your actual trading results may not match the Behavioral Analytics or other results displayed through the Service. You understand that the Behavioral Analytics may have undercompensated or overcompensated for the impact of certain market factors. When trades are executed in real market conditions using market orders, you may suffer financial losses due to market instability and/or volatility which may cause the market to move against your position. Therefore, a decision to trade in the stock market is made at your own risk and is your sole responsibility. OVTLYR is not making any representations as to whether an account will or is likely to achieve profits or losses similar to those shown. It is strongly recommended that you do your own research prior to commencing trading. OVTLYR does not provide Behavioral Analytics for every investment that is available on the market and OVTLYR reserves the right to change the particular investments that have available Behavioral Analytics at any time. Certain information on the Service, such as the stock or fund prices displayed on the platform, has been obtained from third-party sources believed to be reliable, but OVTLYR does not guarantee or warrant its completeness or accuracy.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or OVTLYR, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
III. Accounts and Registration
To access most features of the Service, including to view the Behavioral Analytics for most investments, you must register for an account. You may register using your Google account or you may create an account on the Service. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You may register for a free Starter account or a paid OVTLYR Pro account. OVTLYR may also offer an Enterprise account for organizational and enterprise users of the Service. If your organization would like to purchase an Enterprise account, OVTLYR and your organization must enter into a separate written agreement. Your organization’s use of the Enterprise account would be subject to the terms of that separate agreement. To view the features available for each type of account you may visit the Pricing page on our website, which may be updated from time to time. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
IV. General Payment Terms
You may elect to sign up for a paid account or upgrade your existing free account at any time. If you register for a paid account, you will be directed to our third-party payment processor to enter your payment information. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
Price. OVTLYR reserves the right to determine pricing for the Service. OVTLYR will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information at www.ovtlyr.com/Pricing. OVTLYR may change the fees for any feature of the Service, including additional fees or charges, if OVTLYR gives you advance notice of changes before they apply. OVTLYR, at its sole discretion, may make promotional offers with different features and different pricing to any of OVTLYR’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Authorization. You authorize OVTLYR or its third-party payment processors to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by OVTLYR, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then OVTLYR or its third-party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize OVTLYR or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page at www.ovtlyr.com/Pricing. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. OVTLYR or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by [changing your subscription on “My Accounts” page] contacting us at email@example.com. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
Effect of Cancellation of a Subscription Service. Subject to Section 6.3, if you cancel your Subscription Service, all charged Subscription Fees are non-refundable. If OVTLYR terminates your account or otherwise cancels your Subscription Service for any reason other than for cause, OVTLYR will refund you a pro-rata portion of any unused Subscription Fees (“Subscription Refund”) within 30 days of such termination. Such Subscription Refund will be paid by OVTLYR or its third-party payment processors to the payment details provided in your account. OVTLYR will not be responsible for any delay, failure, or inability to provide you with a Subscription Refund due to any reason out of OVTLYR’s control, including your failure provide accurate payment details, the failure of any third-party payment processor, or your failure to otherwise comply with these Terms.
Free Trial Service. The Service may include certain free trial offers of OVTLYR Pro (“Free Trial”) for a period of time communicated with the free trial offer (“Free Trial Period”). The Free Trial will begin on the date that you accept the Free Trial offer and will expire at the earlier of (a) the end of the Free Trial Period, and (b) cancellation of the Free Trial. If you do not provide your billing information during the Free Trial Period, then at the end of the Free Trial Period you will lose access to the OVTLYR Pro features. If you provide your credit card information during the Free Trial Period, the associated OVTLYR Pro Subscription Service will automatically renew at its then-current Subscription Fee with no further action from you, until cancelled. You may cancel the Free Trial and the automatic renewal of the associated Subscription Service at any time prior to the end of the Free Trial Period by [changing your subscription on “My Accounts” page] contacting us at firstname.lastname@example.org. If you provide billing information, you must cancel your Free Trial before it renews in order to avoid billing of the Subscription Fee to your account.
Delinquent Accounts. OVTLYR may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then OVTLYR reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
Limited License. Subject to your complete and ongoing compliance with these Terms, OVTLYR grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service on a mobile device that you own or control; and (b) access and use the Service.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant OVTLYR an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Ownership; Proprietary Rights. The Service is owned and operated by OVTLYR. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by OVTLYR (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of OVTLYR or its third-party licensors. Except as expressly authorized by OVTLYR, you may not make use of the Materials. There are no implied licenses in these Terms and OVTLYR reserves all rights to the Materials not granted expressly in these Terms.
VI. Third-Party Terms
Linked Brokerage Tool. OVTLYR may allow you to link your account on the Service with your brokerage account in order to purchase or sell securities or receive the Behavioral Analytics specific to your investment portfolio and current holdings (the “Linked Brokerage Tool”). OVTLYR currently integrates with SnapTrade, Inc. (“SnapTrade”) to operate the Linked Brokerage Tool, but may change this provider at any time (SnapTrade and any other integration provider the “Brokerage Integrator”). To link your brokerage account to the Service, you must agree to the applicable Brokerage Integrator’s terms and conditions and provide the credentials for your brokerage account to the Brokerage Integrator. SnapTrade, not OVTLYR, is responsible for storing your brokerage account credentials, transmitting any requests you make to trade stocks to your broker, and importing the data from your brokerage account into the Service. Any trades you make using the Linked Brokerage Tool are governed by the Brokerage Integrator’s terms and your brokerage policy. OVTLYR has no control over and is not liable for any harm or damage resulting from (a) the transmission or processing of your trades by the Brokerage Integrator or your broker; or (b) any mistakes, errors, omissions, or inaccuracies in the brokerage information the Brokerage Integrator imports into the Service regarding your current holdings.
Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
VII. User Content
User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including comments, messages, photos, images, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
Limited License Grant to OVTLYR. By Posting User Content to or via the Service, you grant OVTLYR a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from OVTLYR’s exercise of the license set forth in this Section.
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. OVTLYR disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize OVTLYR and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by OVTLYR, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause OVTLYR to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. OVTLYR may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against OVTLYR with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, OVTLYR does not permit infringing activities on the Service.
Push Notifications. If you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
IX. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
2. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
3. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
4. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by OVTLYR;
5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission.
8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or
9. attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
X. Intellectual Property Rights Protection
Respect of Third Party Rights. OVTLYR respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Attn: Legal Department (IP Notification)
5830 Granite Parkway, Suite 100, Plano, Texas 75024
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
1. a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(b) a description of the material that you claim is infringing and where it is located on the Service;
2. your address, telephone number, and email address;
(c) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
3. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by OVTLYR with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to OVTLYR making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Repeat Infringers. OVTLYR’s policy is to: (a) remove or disable access to material that OVTLYR believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. OVTLYR will terminate the accounts of users that are determined by OVTLYR to be repeat infringers. OVTLYR reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
Counter Notification. If you receive a notification from OVTLYR that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide OVTLYR with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to OVTLYR’s Designated Agent through one of the methods identified in Section 13.2, and include substantially the following information:
(a) your physical or electronic signature;
1. dentification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(b) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
2. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which OVTLYR may be found, and that you will accept service of process from the person who provided notification under Section 13.2 above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to OVTLYR in response to a Notification of Claimed Infringement, then OVTLYR will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that OVTLYR will replace the removed User Content or cease disabling access to it in 10 business days, and OVTLYR will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless OVTLYR’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on OVTLYR’s system or network.
False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [OVTLYR] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” OVTLYR reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. If you are currently enrolled in a Subscription Service and we require you to consent to modified Terms in order to continue using the Services, you may be entitled to a pro-rata refund for the remaining term of your Subscription Period if you do not accept the modified Terms. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
XI. Term, Termination, and Modification of the Service
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2.
Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, OVTLYR may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay OVTLYR any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7.3, 8, 10, 15.3, 16, 17, 18, 19, and 20 will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
Modification of the Service. OVTLYR reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. OVTLYR will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify OVTLYR, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “OVTLYR Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
XII. Disclaimers; No Warranties by OVTLYR
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. OVTLYR DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. OVTLYR DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND OVTLYR DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR OVTLYR ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING THE BEHAVIORAL ANALYSIS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE OVTLYR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM (A) THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER; (B) THE USE OF YOUR BROKERAGE ACCOUNT CREDENTIALS BY ANY BROKERAGE INTEGRATOR; (C) YOUR ABILITY OR INABILITY TO TRADE SECURITIES THROUGH THE SERVICE; OR (D) ANY ERRORS, OMMISSIONS, OR INACCURACIES IN THE BROKERAGE DATA IMPORTED BY ANY BROKERAGE INTEGRATOR TO THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 17, AS WELL AS THE DISCLAIMERS IN SECTION 2 (NO INVESTMENT ADVICE) AND SECTION 3 (BEHAVIORAL ANALYTICS DISCLAIMER) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. OVTLYR does not disclaim any warranty or other right that OVTLYR is prohibited from disclaiming under applicable law.
XIII. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE OVTLYR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY OVTLYR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE
EXCEPT AS PROVIDED IN SECTIONS 19.5 AND 19.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE OVTLYR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO OVTLYR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
XIV. Dispute Resolution and Arbitration
Generally. Except as described in Section 19.2 and 19.3, you and OVTLYR agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OVTLYR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to OVTLYR, Inc., Attention: Legal Department – Arbitration Opt-Out, 5830 Granite Parkway, Suite 100, Plano, Texas 75024 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once OVTLYR receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting OVTLYR.
Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). OVTLYR’s address for Notice is: OVTLYR, Inc., 5830 Granite Parkway, Suite 100, Plano, Texas 75024. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or OVTLYR may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, OVTLYR will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the OVTLYR has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your [residence/billing address] unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your [residence/billing address]. During the arbitration, the amount of any settlement offer made by you or OVTLYR must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
Arbitration Relief. Except as provided in Section 19.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by OVTLYR before an arbitrator was selected, OVTLYR will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
No Class Actions. YOU AND OVTLYR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OVTLYR 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.
Modifications to this Arbitration Provision. If OVTLYR makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to OVTLYR’s address for Notice of Arbitration, in which case your account with OVTLYR will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 19.8 or the entirety of this Section 19 is found to be unenforceable, or if OVTLYR receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20.2 will govern any action arising out of or related to these Terms.
Governing Law. These Terms are governed by the laws of the State of Texas without regard to conflict of law principles. You and OVTLYR submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Collin County, Texas for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Texas, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Contact Information. The Service is offered by OVTLYR, Inc., located at 5830 Granite Parkway, Suite 100, Plano, Texas 75024. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
XVI. Notice Regarding Apple.
This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and OVTLYR only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.