Last Updated 9 January, 2024.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
By using the Service, you represent that you have legal authority to bind your organization to these Terms and agree to these Terms on behalf of yourself and your organization.
2. Service Use.
A. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, Octerra grants you a limited, non-exclusive, non-assignable, and non-transferable license to (x) use the Website; and (y) if you are a Subscriber (defined below), Subscriber Partner (defined below), or Bidder (defined below), use the Platform during the term set out in the applicable Subscriber’s Order Form. The foregoing limited license does not give you any ownership of, or any other intellectual property interest in, the Service.
You may not use the Service unless you are at least eighteen (18) years old or access the Platform unless you are an Authorized User (defined below).
You may not: (i) engage in any activity in connection with the Service that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Octerra; (ii) harvest any information from the Service, including without limitation, by copying any such information in any way that is not specifically authorized hereunder; (iii) reverse engineer or modify the Service; (iv) interfere with the proper operation of or any security measure used by the Service; (v) infringe any intellectual property or other right of any third party; (vi) use the Service in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements (collectively, “Applicable Laws”) that apply to your use of the Service.
Octerra agrees to comply with all Applicable Laws that apply to its provision of the Service.
Octerra may suspend or terminate your license to use the Website for any or no reason, in Octerra’s sole discretion, and without advance notice or liability. If you are a Subscriber Partner or Bidder, your license to use the Platform, in whole or in part, for your uncured material breach of these Terms upon ten (10) days’ written notice . If you are a Subscriber, Octerra may suspend or terminate your license to use the Platform in accordance with your Order Form or if (i) Octerra gives you written notice of a material breach of these Terms and you fail to cure such breach within thirty (30) days of such notice; or (ii) you become the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding. If your license to use the Service is suspended or terminated, your right to use the Service, and any other rights relating thereto, shall be terminated, and you agree that you will immediately discontinue use of the Service and make all outstanding payments due, if applicable.
D. Reservation of Rights.
All rights not expressly granted to you are reserved by Octerra and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Service for any purpose is prohibited.
3. Platform Use.
A. Subscribers, Subscriber Partners, and Bidders.
There are three types of users on our Platform: Subscribers, Subscriber Partners, and Bidders.
A “Subscriber” is an organization that purchases a subscription for a workspace on our Platform. A subscription is purchased by a Subscriber via a written order form (“Order Form”) executed by Octerra and a Subscriber that incorporates these Terms by reference. To the extent there is a conflict between these Terms and terms of an Order Form, these Terms control unless the Order Form expressly states otherwise.
A “Subscriber Partner” is a non-subscribing organization that joins a Subscriber’s workspace on our Platform other than the applicable Subscriber and any Bidders (defined below). Subscriber Partners help provide services to the applicable Subscriber, including developing and analyzing bids for the Subscriber. Examples of Subscriber Partners include agents, suppliers, vendors, clients, and other third parties invited by the applicable Subscriber, but excluding any Bidders.
A ”Bidder” is a person or organization that uses the Platform for the purpose of submitting bids to the Subscriber.
Each Subscriber, Subscriber Partner, and Bidder hereby agree to comply with these Terms and all applicable laws. Subscriber Partners and Bidders further agree to use the Platform for purposes of providing services and/or submitting bids to the Subscriber, and for no other purpose. Each Subscriber has sole control over which Subscriber Partners and Bidders join its workspace on the Platform and is fully responsible for the acts or omissions of its Subscriber Partners. Octerra expressly disclaims liability for the acts or omissions of each Subscriber, Subscriber Partner, and Bidder.
B. Authorized Users.
Each Subscriber, Subscriber Partner, and Bidder may authorize a designated number of their employees as set out in an applicable Order Form to access and use the Platform (“Authorized Users”). By accessing and using the Platform, each Subscriber, Subscriber Partner, and Bidder and their Authorized Users agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to their accounts; (iv) not transfer or share their accounts with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of their accounts or breach of security. Each Subscriber, Subscriber Partner, and Bidder is solely responsible for all activities that occur under its accounts, whether or not it authorized the activity, and we are not liable for any loss or damage to it or any third party arising from its failure to comply with any of the foregoing obligations.
A. Our Content.
The Service contains: (i) materials and other items relating to Octerra and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of Octerra and various parties; and (iii) other forms of intellectual property of Octerra and various parties (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Octerra or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Your Content.
You may from time to time provide suggestions, comments or other feedback (“Feedback”) to Octerra concerning the Service, including the features, functionality and user experience associated with the Service. You agree that all such Feedback will be the sole and exclusive property of Octerra and you hereby assign and transfer to Octerra any rights you may have in any Feedback.
D. Data Processing.
5. Confidential Information.
The parties agree that any information provided under these Terms shall be treated as Confidential Information and held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. “Confidential Information” means content, materials, or information provided through the Platform by Octerra, a Subscriber, a Subscriber Partner, or Bidder. Subscriber’s Confidential Information includes, without limitation, Subscriber’s business information, ideas, materials, work in process, marketing, sales, pricing, briefs, scripts, storyboards, bids, and names of any bidding parties provided by Subscriber through the Platform. Subscriber Partner and/or Bidder’s Confidential Information includes, without limitation, Subscriber Partner and/or Bidder’s business information, ideas, materials, work in process, marketing, sales, pricing, briefs, scripts, storyboards, bids, and names of any bidding parties provided by Subscriber Partner and/or Bidder through the Platform. “Confidential Information” does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.
We note that when you provide Confidential Information, that information may be shared and visible to other parties within the applicable Subscriber’s workspace on the Platform. Although these Terms put in place restrictions on Subscribers, Subscriber Partners, and Bidders’ use of Confidential Information, Octerra is not responsible for how, and specifically disclaims any liability arising from the manner in which, those parties treat such Confidential Information. We may also share your Confidential Information as necessary to provide the applicable Subscriber with the Platform services, protect our or third party rights, in connection with a potential or actual merger or acquisition, or as required by law. We will not aggregate any data from different Subscribers, create any industry benchmarks, or sell or license any aggregate data to any third parties.
6. Copyright Infringement.
A. DMCA Notification.
Octerra responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
- A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
- Your contact information, including your address, telephone number, and an e-mail address;
- A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
4117 Hillsboro Pike
Nashville, TN. 37215
Phone: (615) 308-3081
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
B. Counter Notification.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
- A physical or electronic signature;
- Identification 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;
- 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
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Octerra may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications in accordance with the DMCA.
7. Customer Support.
If you have any questions or comments, please send an e-mail to us at email@example.com. All legal notices to us must be mailed to: Octerra, Inc., Attn: Legal, 4117 Hillsboro Pike, Suite 103191, Nashville, TN. 37215. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8. Third Party Services.
Our Website contains content from and hyperlinks to websites, locations, platforms, and services operated and owned by third parties (“Third Party Services”). We may also integrate third party technologies into our Platform. These Third Party Services are not owned, controlled, or operated by us, and you acknowledge and agree that we are not responsible or liable for the information, content, products, technologies, or services on or available from such Third Party Services, or for the results to be obtained from using them. If you choose to access, transact with, or otherwise interact with any such Third Party Services, you do so at your own risk.
You can opt-out of receiving certain promotional e-mails from us at any time by following the unsubscribe directions in those communications or contacting us at firstname.lastname@example.org with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Octerra’s ongoing business relations. Please note that any opt-out by you is limited to the e-mail address, device, or phone number used and will not affect subsequent subscriptions.
10. Agreement to Arbitrate Disputes and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and Octerra agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent either party has in any manner violated or threatened to violate the other party’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) or its obligations regarding any Confidential Information. Under such circumstances, a party may bring a lawsuit solely for injunctive relief to stop the other party’s intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) or breach of confidentiality obligations without first engaging in arbitration or the informal dispute-resolution process described herein.
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or Octerra must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and Octerra, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Octerra.
E. Waiver of Class Actions.
You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Octerra in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND OCTERRA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
G. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
11. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER OCTERRA NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE " OCTERRA PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
12. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES. NOTWITHSTANDING THE FOREGOING, FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 13 IMMEDIATELY BELOW, IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES.
You agree to defend, indemnify and hold harmless the Octerra Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) Your Content; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; (vii) any misrepresentation made by you; or (viii) if you are a Subscriber, the acts or omissions or your Subscriber Partners. Octerra reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Octerra’s defense of any claim. You will not in any event settle any claim without the prior written consent of Octerra.
Octerra agrees to defend, indemnify and hold harmless you and your officers, directors, managers, employees or agents from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) Octerra’s breach or alleged breach of these Terms; (ii) Octerra’s Content; (iii) Octerra’s misuse of Your Content; (iv) Octerra’s violation of any Applicable Laws; (v) Octerra’s violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) any breach by Octerra of its confidentiality, data security or privacy obligations hereunder; and (vii) Octerra’s negligence or willful misconduct. Octerra will not in any event settle any claim without your prior written consent.
14. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, upon notice to you, effected through a pop-up window, other notification on user dashboards, on the Service so that they are accessible via a link from the home page, and/or by e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
15. General Provisions.
A. Consent or Approval.
No Octerra consent or approval may be deemed to have been granted by Octerra without being in writing and signed by an officer of Octerra.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Platform Use, Ownership, Confidential Information, Copyright Infringement, Customer Support, Third Party Services, Communications, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
C. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Octerra may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Octerra.
D. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Octerra in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
E. International Issues.
Octerra controls and operates the Service from the U.S., and Octerra makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
F. Investigations; Cooperation with Law Enforcement.
Octerra reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Octerra may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
G. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.