TERMS OF USE

Welcome to optimum‑holdings.com (the “Website”), which is owned, directly or indirectly, by OPTiMUM Holdings, LLC, or one or more of its direct or indirect affiliates, divisions, business units and subsidiaries (collectively “OPTiMUM,” the “Company,” “we,” or “us”). We have adopted the below terms of use (the “Terms of Use”) to specify and delimit the scope of rights and obligations that may be exercised and enforced by you, the visitor to our Website, and by us in a legally binding agreement.

By choosing to access and use the Website, you are deemed to have read, considered, understood and expressly agreed to be bound by the Terms of Use and the Privacy Policy. If you do not consent to the terms and conditions outlined in these documents in their entirety, your use of any part of the Website is not authorized. If you have any questions or comments, Section 18 of the Terms of Use describes how you may contact us.

1.       INTRODUCTION AND ACCEPTANCE

We encourage you to read these Terms of Use carefully before using the Website. By accessing and/or using the Website, other than to read the Terms of Use for the first time, you are agreeing to comply with the Terms of Use, which may change from time to time as set forth in Section 16, below. If you do not agree to be bound by the Terms of Use, do not access or use our Website.

You agree that these Terms of Use are supported by good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge. Such consideration includes, without limitation, your use of the Website and the materials and information available thereon.

In addition to the Terms of Use, we have established a Privacy Policy to explain how user information is collected and used by us; it is incorporated by reference into the Terms of Use. By accessing or using our Website, you are signifying your acknowledgement of and agreement to the Privacy Policy. A copy of the Privacy Policy can be found here: www.optimum-holdings.com/privacy-policy/.

2.       INTELLECTUAL PROPERTY

Our Website and included content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URL’s, technology, documentation, and interactive features (collectively, the “Website Content”) and all intellectual property rights to the same are owned by OPTiMUM, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on our Website are owned by us, our licensors, or both. You shall not acquire any right, title or interest in our Website or any Website Content. Any rights not expressly granted in these Terms of Use are expressly reserved.

3.       WEBSITE ACCESS AND USE

a)       When accessing our Website, including without limitation to the Website Content, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law. Except as expressly permitted in these Terms of Use, you may not use, reproduce, distribute, create derivative works based thereon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner. You acknowledge that you do not acquire any ownership rights by downloading or printing Website Content.

b)       Furthermore, except as expressly permitted in these Terms of Use, you may not:

i)         remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Website or Website Content;

ii)       circumvent, disable or otherwise interfere with security-related features of our Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of our Website or Website Content;

iii)      use an automatic device (such as a robot or spider) or manual process to copy or “scrape” our Website or Website Content for any purpose without our express written permission. Notwithstanding the foregoing, OPTiMUM grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from our Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. OPTiMUM reserves the right to revoke this permission (generally or specifically) at any time;

iv)      collect or harvest any personally identifiable information from our Website including, without limitation, user names, passwords, e-mail addresses;

v)       solicit other users of our Website to join or become members of any commercial online service or other organization without our prior written approval;

vi)      attempt to interfere with the proper working of our Website or impair, overburden, or disable same;

vii)    decompile, reverse engineer, or disassemble any portion of our Website;

viii)   use network-monitoring software to determine architecture of or extract usage data from our Website;

ix)      encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person's user credentials without permission, etc.);

x)       violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or

xi)      engage in any conduct that restricts or inhibits any other user from using or enjoying our Website.

c)       You agree to co-operate fully with OPTiMUM to investigate any suspected or actual activity that is in breach of these Terms of Use.

4.       USER REGISTRATION

a)       In order to access or use some features of the Website (“Advanced Content”), you will have to become a registered user. If you are under the age of eighteen, then you are not permitted to register as a user or otherwise submit personal information.

b)       If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user name (the “username”) and password (the “Membership”), which may permit you access to certain areas of our Website not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under your Membership, whether or not you have authorized the activity. You agree to notify us immediately at www.optimum-holdings.com/contact/ of any breach of security or unauthorized use of your Membership.

5.       USER CONTENT

a)       We may now or in the future permit users to post, upload, transmit through, or otherwise make available on our Website (collectively, “submit”) messages, templates, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on our Websites. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.

b)       You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.

c)       You represent, warrant, and covenant that you will not submit any User Content that:

i)         violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;

ii)       impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable;

iii)      encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;

iv)      is an advertisement for goods or services or a solicitation of funds;

v)       includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;

vi)      contains a formula, instruction, or advice that could cause harm or injury; or

vii)    is a chain letter of any kind.

Moreover, any conduct by a user that, in our sole discretion, restricts or inhibits any other user from using or enjoying our Website will not be permitted.

d)       By submitting User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sub-licensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (a) in connection with our business; and (b) in connection with the businesses of our successors, parents, subsidiaries, and their related companies. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for personal, non-commercial use as permitted by the functionality of our Website and these Terms of Use.

e)       By submitting User Content, you also grant us the right, but not the obligation, to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called moral rights or rights of droit moral with respect to the User Content.

f)        We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).

g)       We have the right, but not the obligation, to monitor User Content. We have the right, in our sole discretion and for any reason whatsoever, to edit, refuse to post, remove, or disable access to any User Content.

6.       WEBSITE CONTENT & THIRD-PARTY LINKS

a)       We publish our Website and Website Content in support of commercial and promotional purposes of OPTiMUM. You may not rely on any information and opinions expressed on any of our Websites for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content.

b)       In many instances, Website Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on our Website by anyone other than our authorized employees or spokespersons while acting in their official capacities.

c)       If there is a dispute between persons accessing our Website or between persons accessing our Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release OPTiMUM and its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind and nature arising out of, relating to, or in any way connected with such dispute.

d)       Our Website may link to or contain links to various websites or resources external to our Website (“Third-Party Website(s)” or “3PW(s)”).

Links to Third-Party Websites are identifiable by the presence of an adjacent Icon Description automatically generated symbol. When you click on such links, you will be transferred away from our Website and connected to the organization hosting the website or resource that you selected. Links to 3PWs may also be contained in advertisements, including banner advertisements and sponsored links, in which case the Icon Description automatically generated symbol may not be present.

We do not necessarily control or maintain Third-Party Websites and are thus not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites. Such websites are not investigated, monitored, or checked for quality, accuracy, or completeness by us. The privacy practices employed by 3PW operators may differ from those in place for our Website. You assume sole responsibility for your use of third-party links. We are neither responsible for any content posted on third-party websites nor liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.

Inclusion of any linked 3PW on our Website does not imply or express our approval or endorsement of the linked website or any of the content, opinions, products, or services provided by the 3PW. We accept no responsibility for any loss or damage that may arise from your use of a 3PW. If you decide to access 3PWs linked to our Website, you do so entirely at your own risk and subject to the terms and conditions of use for those linked websites. We encourage you to note when you leave our Website and to read the privacy statements of all 3PWs before submitting any PII.

We exercise no control over linked sites even if an affiliation exists between the Website and a 3PW. Each of these linked sites maintains its own independent privacy and data collection policies and procedures. While we expect our business partners and affiliates to respect the privacy of our users, we cannot be responsible for the actions of third parties.

7.       INDEMNIFICATION

You agree to indemnify and hold harmless OPTiMUM and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of our Website; (ii) User Content provided by you or through use of your Membership; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) any acts or omissions you have made. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.

8.       DISCLAIMERS

You expressly agree that use of our Website is at your sole risk. Our Website and Website Content are provided on an “as is” and “as available” basis without warranty of any kind, either express or implied. Without limiting the foregoing and to the fullest extent permitted by law, OPTiMUM and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies disclaim any and all warranties including any: (1) warranties that the Website will meet your requirements; (2) warranties concerning the availability, accuracy, security, usefulness, timeliness, or informational content of the Website; (3) warranties of title, non-infringement, merchantability, or fitness for a particular purpose; (4) warranties for services or goods received through, accessed through, or advertised on our Website; (5) warranties concerning the accuracy or reliability of the results that may be obtained from the use of the Website; (6) warranties that your use of the Website will be secure or uninterrupted; and (7) warranties that errors in the Website’s underlying software will be corrected.

9.       LIMITATION ON LIABILITY

a)       Under no circumstances shall OPTiMUM or its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, or their related companies be liable for indirect, incidental, special, consequential, or exemplary damages (even if OPTiMUM has been advised of the possibility of such damages), arising out of, relating to, or in any way connected with our Website or these terms of use. Your sole remedy for dissatisfaction with our Website including, without limitation, the Website Content is to stop using our Website. Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with our Website or any links on our Website, as well as by reason of any information or advice received through or advertised in connection with our Website or any links on our Website. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third-party or conduct of a third-party on our Website.

b)       Notwithstanding anything to the contrary contained herein, in no event shall the cumulative liability of OPTiMUM and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies exceed the total payments received by OPTiMUM from you during the preceding twelve (12) month period. Furthermore, you agree that any cause of action arising out of, relating to, or in any way connected with our Website or these Terms of Use must commence within one (1) year after the cause of action occurs; otherwise, such cause of action shall be permanently barred.

c)       In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. Our limitations of liability shall apply to the fullest extent permitted by law.

10.    TERMINATION

a)       We reserve the right, in our sole discretion and at any time, to terminate or suspend your Membership and/or block your access to our Website for any reason including, without limitation, if you have failed to comply with the letter and spirit of these Terms of Use. You agree that OPTiMUM shall not be liable to you or any third party for any termination or suspension of your Membership or for blocking your access to our Website.

b)       If you become a registered user, you may terminate your Membership at any time by making a written request as detailed in Section 18.

c)       Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Membership or these Terms of Use shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the miscellaneous provisions in Section 17.

11.    COPYRIGHT POLICY

a)       OPTiMUM respects the intellectual property rights of others and expects its users to do the same. In appropriate circumstances and at its sole discretion, we may terminate and/or disable the Membership of users who we suspect have infringed on the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, OPTiMUM may remove or disable access to material on our Website or hosted on our systems that may be infringing or the subject of infringing activity.

b)       In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (“Designated Agent”). OPTiMUM's Designated Agent is:

OPTiMUM Holdings, LLC
P.O. Box 381
Gates Mills, Ohio 44040-0381
United States of America
ATTN: Legal Department (W3-TU-Copyright)

c)       If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work's copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:

i)         A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

ii)       Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

iii)      Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.

iv)      Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

v)       A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

vi)      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 owner of an exclusive right that is allegedly infringed.

We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.

12.    CHOICE OF LAW

These Terms of Use shall be construed in accordance with the laws of the State of Ohio. Any action arising out of your use of the Website or these Terms of Use shall be brought in any state or federal court located in Harris County, Texas.

13.    DISPUTE RESOLUTION

This section outlines the method by which any disputes that might arise between you and OPTiMUM (jointly the ”Parties” and each individually a “Party”) shall be resolved.

a)       The Parties agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at the address provided below. Conversely, we will contact you based on the contact information that you have provided us.

b)       The Parties agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by binding arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in the Terms of Use and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. The Parties also agree as follows:

i)          “Disputes” are any claims against or controversies involving a Party related in any way to our Website, Website Content or these Terms of Use. This includes claims you bring against OPTiMUM’s employees, agents, affiliates or other representatives, and claims OPTiMUM may bring against you.

ii)       Any Party wishing to arbitrate a dispute, agrees to send written notice to the other Party providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent to: OPTiMUM Holdings, LLC, P.O. Box 381, Gates Mills, Ohio, 44040-0381, United States of America, ATTN: Legal Department (W3-TU-Dispute). Parties agree to make reasonable attempts to resolve any disputes. If a dispute cannot be resolved within forty-five (45) days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration.

iii)      The FAA applies to this Agreement and arbitration provision. The Parties agree that the FAA's provisions, not state law, govern all questions of whether a dispute is subject to arbitration.

iv)      The arbitration will be administered by the National Arbitration Forum (“NAF”) under its arbitration rules. If any NAF rule conflicts with these Terms of Use, these Terms of Use shall apply. You can obtain procedures, rules, and fee information from the NAF at +1 (800) 474-2371 or www.adrforum.com.

v)       Unless the Parties agree otherwise, the arbitration will be conducted by a single neutral arbitrator and will take place in Harris County, Texas, United States of America. The federal or state law that applies to these Terms of Use will also apply during the arbitration.

vi)      The Parties agree not to pursue Arbitration on a class-wide basis and also agree that any arbitration will be solely between the Parties, i.e., not brought on behalf of or together with other individuals’ claims. If for any reason any court or arbitrator holds that this restriction is unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought before the courts.

vii)    Each Party is responsible for its respective costs relating to counsel, experts, and witnesses as well as any other costs related to arbitration. The Party raising a dispute and issuing the notice to arbitrate will be responsible for arbitration administrative/filing fees.

14.    NO CLASS ACTIONS

To the extent allowed by law, the Parties waive any right to pursue disputes on a class-wide basis; that is, to either join a claim with the claim of any other person or entity, or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.

15.    NO TRIAL BY JURY

To the extent allowed by law, the Parties waive any right to trial by jury in any lawsuit, arbitration, or other proceeding.

16.    AMENDMENT; ADDITIONAL TERMS

a)       We reserve the right, in our sole discretion, to modify or discontinue any aspect or feature of our Website or to modify these Terms of Use from time to time and at any time. Furthermore, we reserve the right to provide you with operating rules or additional terms that may govern your use of our Website generally, unique parts of our Website, or both (“Additional Terms”). Any Additional Terms that we may provide to you will be incorporated by reference into these Terms of Use. To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will prevail.

b)       Modifications to these Terms of Use or Additional Terms will be effective immediately upon posting on our Website. It is your responsibility to review the Terms of Use and our Website from time to time for any changes or Additional Terms. Your access and use of our Website following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms of Use or to any Additional Terms, you may terminate your Membership as provided in Section 10 or, if you do not have a Membership, your only recourse is to immediately discontinue use of our Website.

17.    MISCELLANEOUS

a)       No waiver by either Party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. If any provision of these Terms of Use is held to be invalid or unenforceable, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Use, which shall remain in full force and effect.

b)       These Terms of Use (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the Parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the Parties with respect to such subject matter.

c)       You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. However, OPTiMUM has the right to assign these Terms of Use or any rights hereunder without your consent and without notice.

18.    NOTICES

All notices, requests, and communications hereunder shall be in writing, and any such notice, request or other communication shall be deemed to have been given or made three (3) business days after being posted by postage prepaid, first-class certified mail, return receipt requested to:

OPTiMUM Holdings, LLC
P.O. Box 381
Gates Mills, Ohio 44040-0381
United States of America
ATTN: Legal Department (W3-TU)

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OH-W3-TU, rev.001 (2021-04-21)