Terms of Use

Acceptance of the Terms of Use

These terms of use are entered into by and between you and Optimal, LLC (”Optimal,” “we,” “us,” or “our”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Terms of Use”), govern your access to and use of the services we provide to you, including, but not limited to, your use of our website optimalhrv.com (“Website”), our mobile and/or desktop application(s) (“Apps”), our software or devices (whether or not purchased by you), and in-person services provided to you by our employees, contractors and agents (all of the foregoing are collectively referred to as the “Services”).

Please read these Terms of Use carefully before you start to use the Services. By using the Services or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our “Privacy Policy,” found at https://optimalhrv.com/privacy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Services.

By using the Services and accepting these Terms of Use, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Service. If you do not meet all of these requirements, you must not access or use the Website, Apps, or use the Services.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have notice on or before the date the change is posted on the Website, in the App or otherwise made known to you.

Your continued use of the Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check the Website frequently so you are aware of any changes, as they are binding on you.

Accessing the Services, and Account Security

We reserve the right to withdraw or amend the Website, the Apps, any material we provide to you, or any of the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.

You are responsible for both:

Making all arrangements necessary for you to have access to the Services; and
Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Use and comply with them.

To access the Services, you will be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide is correct, current, and complete. You agree that all information you provide to register for Services or otherwise, including, but not limited to, through the use of any interactive features on the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Services or portions thereof using your username, password, or other security information. You agree to notify us immediately of any unauthorised access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

Intellectual Property Rights

The Services, including, without limitation the Website and the Apps, and their entire contents, features, and functionality (including but not limited to all information, software, hardware, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Optimal, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material available through the Services, except:

Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;
You may store files that are automatically cached by your web browser for display enhancement purposes;
You may print, download, or copy the material made available to you incidental to the provision of the Services and not for further reproduction, publication, or distribution;
Subject to the terms and conditions set forth herein, you may download to your computer or mobile device and use copies of the Apps we make available to you incidental to the provision of the Services; and/or
If we provide social media features with certain content, you may take such actions as are enabled by such features.

Further, you must not:

Modify copies of any material made available to you incidental to the provision of the Services, including, but not limited to, material found on the Apps or the Website and any source codes of the App or Website;
Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text; or
Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
Except as otherwise agreed to by us, you must not access or use for any commercial purposes any part of the Website, Apps, or any other materials available through the provision of Services.

If you wish to make any use of material provided to you other than as set out in this section, please address your request to support@optimalhrv.com.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Use, your right to use the Services will terminate immediately and you must, at our option, return or destroy any copies of the materials you have made. This requirement is made in addition to any other remedies Optimal may have by contract, at law, or in equity and shall not be interpreted to limit any of other remedy available to Optimal.

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

Trademarks

Optimal’s names, logos, product and service names, designs, and slogans are trademarks of Optimal or its affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on the Website or Apps are the trademarks of their respective owners.‌

Prohibited Uses

You may use the Services only for lawful purposes and in accordance with these Terms of Use and the Privacy Policy. You agree not to use the Services:

In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or any other country);
For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards (defined below) set out in these Terms of Use;
To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
To impersonate or attempt to impersonate Optimal, an employee of Optimal, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Optimal or users of the Services, or expose them to liability.

Additionally, you agree not to:

Use the Services in any manner that could disable, overburden, damage, or impair the Website, Apps, or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Website or Apps;
Use any robot, spider, or other automatic device, process, or means to access the Website or Apps for any purpose, including monitoring or copying any of the material on the Website or Apps;
Use any manual or automated process or device to monitor or copy any of the material provided incidental to provision of the Services, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent;
Use any device, software, or routine that interferes with the proper working of the Website or Apps;
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Website or the Apps;
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website or Apps, the server on which the Website or Apps are stored, or any server, computer, or database which enables the provision of the Services;
Attack the Website or Apps via a denial-of-service attack or a distributed denial-of-service attack; or
Otherwise attempt to interfere with the proper working of the Website or Apps.

User Contributions

Optimal may provide message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) incidental to the provision of the Services.

All User Contributions must comply with the Content Standards set out in these Terms of Use. Any User Contribution you post will be considered non-confidential and non-proprietary. By providing any User Contribution, you grant us, our affiliates, and service providers, and each of our and their respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns; and

All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Optimal, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website or Apps.

Monitoring and Enforcement; Termination

We have the right to:

Remove or refuse to post any User Contributions for any or no reason in our sole discretion;
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Optimal;
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and
Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. You hereby waive any claim or cause of action you have or may have against Optimal, its owners, members, managers, officers, employees, and agents for any loss or damage to you, financial or otherwise, in connection with or arising out of any such disclosure by us.

We cannot review all materials before they are posted, and cannot ensure prompt removal of any objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards (collectively, the “Content Standards”) apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy https://optimalhrv.com/privacy;
Be likely to deceive any person;
Promote any illegal activity, or advocate, promote, or assist any unlawful act;
Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising; or
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

If you believe that any User Contributions violate your copyright, please follow the below instructions for sending us a notice of copyright infringement. It is the policy of Optimal to terminate the user accounts of repeat infringers.

Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website, App, or that are otherwise provided incidental to the provision of Services by us infringe your copyright, you may request removal of those materials (or access to them) from the Website or Apps by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website or Apps, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is:

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Website or Apps is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Counter Notification Procedures

If you believe that material you posted on the Website or Apps were removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:

Your physical or electronic signature.
An 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 disabled.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website or Apps may be found) and that you will accept service from the person (or an agent of that person) who provided the Website or Apps with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website or Apps was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Repeat Infringers

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

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Reliance on Information Posted

General Information Only

The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.

Third-Party Information

The Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Optimal, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Optimal. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

NO MEDICAL ADVICE

Optimal provides the Services to allow you to track, manage, and share certain health-related data for informational purposes only.

The services and any results or content provided to you by optimal or by any third-party incidental to the services are not medical advice and are not intended to be a substitute for professional medical advice, diagnosis or treatment. optimal and its contractors and agents are not acting in a health care professional capacity nor do the foregoing parties provide any medical or clinical services, and do not diagnose, treat, or manage any illness, disease or condition. You should not change your treatment or care plan, medication, therapy, or any other medical treatments or health care practices based on information you receive through the services. such information is provided for informational purposes only and should not replace regular medical visits with your health care provider. Always seek the advice of your physician or other qualified health care practitioner regarding your medical condition or the use of any medication, medical device, or medical or psychological treatment.

Optimal makes no representation that a particular medication, medical device, or medical or psychological treatment is safe, appropriate, or effective for you. questions regarding your medication, medical devices, and medical or psychological treatments should be directed to your physician or other health care provider. Always consult with your physician or other health care provider if you have any questions or concerns about your health or your physical or psychological condition or if you experience any change in your health or your physical or psychological condition. Never disregard professional medical advice or delay in seeking it because of something you have learned in connection with the services. The services do not include emergency, time sensitive, urgent, remote, or critical care services.

If you think you have a medical emergency, call 911.

Changes to the Services

We may update the content available through the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material provided to you may be out of date at any given time, and we are under no obligation to update such material.‌

Information About You and Your Use of the Services

All information we collect is subject to our Privacy Policy https://optimalhrv.com/privacy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Online Purchases and Other Terms and Conditions

Except as otherwise agreed to by us, any purchases through our Website or any other transactions for the sale of goods or services from the Website or Apps will be governed by a separate agreement between you and us. Such agreement may contain additional terms and conditions, which may also apply to specific portions, services, or features of the Website or Apps.

Linking to the Website, Apps, and Social Media Features

You may link to the Website or Apps, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

The Website and Apps may provide certain social media features that enable you to:

Link from your own or certain third-party websites to certain content available through the Website or Apps.
Send emails or other communications with certain content, or links to certain content available through the Website or Apps.
Cause limited portions of content available through the Website or Apps to be displayed or appear to be displayed on your own or certain third-party websites and/or applications.

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

Establish a link from any website or application that is not owned by you.
Cause the Website, Apps, or portions thereof to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
Link to any content made available through the Website or Apps intended to be proprietary and/or confidential to registered users.
Otherwise take any action with respect to the materials made available through the Services that is inconsistent with any other provision of these Terms of Use.
The website or application from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission at any time with or without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.‌

Links from the Website or Apps

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

Geographic Restrictions

Optimal is based in the State of Colorado in the United States. We provide the Services for use only by persons located in the United States. We make no claims that the Services or any content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.‌

Disclaimer of Warranties

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

To the fullest extent provided by law, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the services or any items obtained through the website or apps, or due to your downloading of any material posted on the website or apps, or on any website linked to them.

Your use of the services, any content provided incidental to the services, and any other items obtained through the services is at your own risk. the services, their content, and any other items obtained through the website or apps are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied. Neither Optimal nor any person associated with optimal makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the services. Without limiting the foregoing, neither optimal nor anyone associated with optimal represents or warrants that the services, their content, or any other items obtained through the website or the apps will be accurate, reliable, error-free, uninterrupted, that defects will be corrected, that our website, apps, or the server that makes our services available are free of viruses or other harmful components, or that the services or items obtained through the website or apps will otherwise meet your needs or expectations.

To the fullest extent provided by law, optimal hereby disclaims all warranties of any kind, whether express or implied, statutory, or otherwise, including but not limited to, any warranties of merchantability, non-infringement, and fitness for particular purpose.

The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.‌

Limitation on Liability

Your ability to collect damages is expressly limited by this section. By participating in the services, you agree to waive your right to any damages except as set forth in this section or as provided by applicable law. You agree to release Optimal and its officers, members, managers, employees, successors and assigns and its subsidiaries and their officers, members, managers, shareholders, directors, employees, successors and assigns from liability in excess of the amount provided for in this section and you expressly agree to personally assume the risk of participating in the services.

To the fullest extent provided by law, in no event will the collective liability of Optimal and its officers, members, managers, employees, successors and assigns, and its subsidiaries and its officers, members, managers, shareholders, directors, employees, and successors and assigns to any party (regardless of the form of action, whether in contract, tort, or otherwise) exceed the greater of $100.00 or the amount you paid to Optimal for the applicable services in the last 12 months out of which the liability arose.

This limitation applies to damages arising from the ordinary negligence of Optimal and its officers, members, managers, and employees and its subsidiaries and its officers, members, managers, shareholders, directors, and employees.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.

The foregoing does not affect any liability that cannot be excluded or limited under applicable law.

Indemnification

You agree to defend, indemnify, and hold harmless Optimal, and its officers, members, managers, and employees and its subsidiaries and their officers, members, managers, shareholders, directors and employees and their successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Services, including, but not limited to, your User Contributions, any use of the content offered as part of the Services, your use of the Services themselves, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website or Apps.‌

Governing Law and Jurisdiction

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

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use, or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the City and County of Denver. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Arbitration

At Optimal’s sole discretion, it may require you to submit any disputes arising from these Terms of Use or use of the Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration in Denver, Colorado, under the Rules of Arbitration of the American Arbitration Association applying Colorado law.‌

Limitation on Time to File Claims

To the extent permitted by applicable law, any cause of action or claim you may have arising out of or relating to these terms of use or the services must be commenced within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.

Waiver and Severability

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

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

Compliance with Apple App Store Requirements

THE FOLLOWING TERMS AND CONDITIONS APPLY TO THOSE USERS WHO DOWNLOAD ONE OF THE APPS FROM THE APPLE APP STORE. Defined terms used below but not defined herein shall have the meanings assigned to them in the Apple App Store Terms of Service (“Apple TOS”).

Acknowledgement

Optimal and you acknowledge that these Terms of Use are binding between Optimal and you only, and not with Apple, Inc. or any of its subsidiaries or affiliates (“Apple”). Optimal is solely responsible for any Apps offered in the Apple App Store. Optimal has had the opportunity to review the Apple TOS as of the most recent effective date of the Apple TOS and warrants that these Terms of Service are compliant with the Apple App Store Terms of Service. If these Terms of Service conflict with the Apple App Store Terms of Service, the Apple TOS shall govern.

Scope of License

The license granted to the you for the Apps offered in the Apple App Store is limited to a non-transferable license to use the Apps on any Apple-branded products that you own or control and as permitted by the “Usage Rules” set forth in the App Store Terms of Service, except that the Apps may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing, where applicable.

Maintenance and Support

Optimal is solely responsible for providing any maintenance and support services with respect to the Apps offered in the Apple App Store, as specified in these Terms of Service, or as required under applicable law. Optimal and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.

Warranty

Optimal is responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed as provided for herein. In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apps to you. However, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is the sole responsibility of Optimal.

Product Claims

Optimal and you acknowledge that Optimal, not Apple, is responsible for addressing any claims you or any third party relating to the Apps or the your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.

Intellectual Property Rights

Optimal and you acknowledge that, in the event of any third party claim that the Apps or your possession and use of the Apps infringes that third party’s intellectual property rights, that you or Optimal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Legal Compliance

You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Developer Name and Address

You acknowledge that Optimal has provided to you herein Optimal’s name and address, and the contact information to which you may address questions, complaints or claims with respect to the Apps should be directed.

Third Party Terms of Agreement

You acknowledge and Agree that you must comply with applicable third-party terms of agreement when using the Apps, as provided herein.

Third Party Beneficiary

If you are downloading one of the Apps from the Apple App Store, Optimal and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon the your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Optimal regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.