End user agreement for OctopusCity.com
OctopusCity.com is in the business of providing a Smart Address Book and Contact Management service both in a free downloadable software
application format and a fee based web format, collectively know as OctopusCity.com. You, an individual or entity (the Subscriber), has a need to
manage your address book and contacts. By downloading and using the OctopusCity.com software, using the web based service and/or clicking
Accept to these terms, you the Subscriber accept the terms of this agreement with OctopusCity.com. If you do not accept the following Terms of
OctopusCity.com Smart Address book and Contact Management Software and do not use the OctopusCity.com Web service.
The following Terms of Service represent a legal binding agreement between you an individual or an entity and OctopusCity.com a New York
(a) “Service” means the downloadable OctopusCity.com software and the web based services that the Subscriber will use to manage their
contacts information. The downloadable software, once installed stores all of the Subscriber`s contacts information locally on the Subscriber`s
OctopusCity.com Web service, all of the subscriber`s contacts and related data will be stored both on our servers and on locally in the
(b) “OctopusCity.com Marks” means the OctopusCity.com`s trademarks and logos that OctopusCity.com wishes to have displayed in connection
with the Software and the Service and on the Web Service Pages.
(c) “Data” means all data and information provided by (or collected about) Subscriber, including, but not limited to, identifying information (e.g.,
name, address), payment-related information (e.g., credit card or employer) and site traffic information (e.g., Service Pages visited, site of origin,
departure destination site.
(d) “Hosting Services” means OctopusCity.com`s hosting of the Web Service Pages pursuant to this Agreement.
(e) “Subscriber” means individual subscribers who access the downloadable software and web service pages and interact with the service
through the software or Internet in connection with address book and contact management and training programs.
(f) “Authenticated Email Address” means an email address owned by the subscriber that has received a registration email directly from
OctopusCity.com and from which OctopusCity.com has received an authentication response by Subscriber.
(g) “Web Service Pages” means all pages of the Service (including, without limitation, any screens associated with the Service or emails or other
communications sent to Subscriber or others by operation of the Service) provided by OctopusCity.com for Subscriber hereunder.
2. The Services. By accepting the terms of this Agreement, you hereby subscribe to the Service and OctopusCity.com will provide the Service in
accordance with the terms hereof. OctopusCity.com hereby grants to Subscriber a non-exclusive, non-transferable right to utilize the Service solely
in accordance with the terms hereof, solely for Subscriber`s own personal use or internal data processing and analytic needs of the entity.
3. Access to Service.
(a) Access. OctopusCity.com shall issue to Subscriber a unique user ID and password with which Subscriber can access the Downloadable
software and Web Service Pages. Subscriber understands that it is their sole responsibility to safeguard their username and password and that the
Subscriber shall be responsible for all transactions conducted through the Web Service Pages using this user ID and password.
4. Use of Service and Data.
(a) Service. Subscriber may use the Service solely for Subscriber`s own data processing and analytic needs. Subscriber shall not (a) display,
reveal, sublicense or otherwise permit access to the Service, in any form, to any third party; (b) transfer Subscriber's rights or obligations under this
Agreement; (c) modify, copy, or make derivative works based on the Service or Software; (d) disassemble, decompile, reverse engineer or
otherwise attempt to derive source code or other trade secrets from the Service, the Software, or any component of the Service or Software; (e)
remove or alter any copyright notices, trademark notices, or other proprietary legends on the Service or on any materials produced by the Service;
(f) create Internet links to or from the Service for others or frame or mirror any of the Web Service Pages or OctopusCity.com`s web site pages; (g)
use the Service to transmit material containing software viruses or other harmful computer code, files, scripts, agents or programs; (h) interfere
with or disrupt the integrity or performance of the Service or any data contained therein; (i) attempt to gain or grant to others unauthorized access
to the Service; (j) rent, lease, or loan the Service or any portion thereof to any third party; or (k) use the Service to act as a service bureau, provide
multi-user licensing capability to any party, or enter into a timesharing arrangement by which any third party may utilize the Service. (l) use the
service in any way that is contrary to the law.
(b) OctopusCity.com is constantly innovating in order to provide the best possible experience for its users. Subscriber acknowledges and agrees
that the form and nature of the Services may change from time to time without prior notice to you.
(c) You acknowledge and agree that while OctopusCity.com may not currently have set a fixed upper limit on the number of transmissions and or
syncs that you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper
limits may be set by OctopusCity.com at any time, at OctopusCity.com`s discretion.
(d) Data Ownership. Subscriber owns all of the data which Subscriber uploads or inputs into the OctopusCity.com Service and OctopusCity.com
5. Subscriber Obligations. Subscriber is solely responsible for collecting, inputting and updating all Subscriber Data relating to its use of the
Service and for creating backup copies of its Data on a daily basis. Subscriber is responsible and liable for the accuracy, completeness, quality,
integrity, legality, reliability and appropriateness of all Subscriber Data and any third party claims regarding same. Subscriber represents and
warrants that the Subscriber Data shall not (a) infringe any copyright or trademark, (b) misappropriate any trade secret, (c) infringe any U.S. patent,
(d) be deceptive, defamatory, obscene, pornographic or unlawful, (e) contain any viruses, worms, or other malicious computer programming codes
intended to damage a user`s system or data or (f) otherwise violate the rights of a third party.
6. Fees and Payment.
(a) Services. OctopusCity.com is a free Smart Address Book / Contact Management software and service for individuals and entities. Upgrades to
the fee based services like OctopusCity.com Web and Mobile as well as partner services can be requested directly from the OctopusCity.com Free
software. If the Subscriber specifically requests one or more of these fee based products and services, the subscriber will be asked to supply credit
card information at that time to conclude the purchase.
7. Term. This agreement will continue in force until the sooner of a) Subscriber requests to terminate their account through their OctopusCity.com
profile page or via email request. b) OctopusCity.com elects to terminate the Subscriber account on its own discretion and notifies subscriber via
email to an authenticated email address.
8. Customer Support. OctopusCity.com will provide email customer support during the hours of 9:00am EST to 6:00pm EST. OctopusCity.com
will make best efforts to respond to email requests received, within 24 hours.
9. Confidentiality. OctopusCity.com shall utilize commercially reasonable efforts to maintain the security and integrity of Subscriber`s Data stored
10. No Warranty or Guarantee. OctopusCity.com does not and cannot warrant or guarantee that hackers cannot penetrate its Services and
Subscriber acknowledges and accepts the risk that damage can possibly result there from.
(a) OctopusCity.com Indemnity. OctopusCity.com shall indemnify and hold Subscriber harmless from and will defend against any third party
claims that the Software infringes any copyright, misappropriates any trade secret, or infringes any U.S. patent; provided, Subscriber (i) gives
OctopusCity.com prompt notice of any actual or threatened claim of such infringement or misappropriation, (ii) gives control of the defense of such
claims to OctopusCity.com, and (iii) cooperates fully, at OctopusCity.com`s expense, with OctopusCity.com and its counsel in the defense or
settlement of such claims. OctopusCity.com`s obligation shall not extend to a claim based on any alleged infringement arising from (A) additions,
changes or modifications to the Software by or on behalf of Subscriber, (B) any incorporation of the Software or any component thereof into any
other product or process, (C) use of the Software other than as permitted by this Agreement. This section states the sole, exclusive, and entire
liability of OctopusCity.com to Subscriber and Subscriber`s sole remedy with respect to ANY THIRD PARTY infringement CLAIM.
(b) Subscriber Indemnity. Subscriber shall indemnify and hold OctopusCity.com harmless from and will defend against any third party claims that
the Subscriber Content (i) infringes any copyright or trademark, (ii) misappropriates any trade secret or (iii) infringes any U.S. patent, (iv) is
deceptive, defamatory, obscene, pornographic or unlawful, (v) contains any viruses, worms or other malicious computer programming codes
intended to damage a user`s system or data, or (vi) otherwise violates the rights of any third party; provided, that OctopusCity.com (A) gives
Subscriber prompt notice of any actual or threatened claim of such infringement or misappropriation, (B) gives control of the defense of such
claims to Subscriber, and (C) cooperates fully, at Subscriber`s expense, with Subscriber and its counsel in the defense or settlement of such
claims. Subscriber`s obligation shall not extend to such claims to the extent they are based upon (1) additions, changes, or modifications to
Subscriber Data made by or on behalf of OctopusCity.com without Subscriber`s approval, or (2) use of Subscriber`s Data other than as permitted
by this Agreement.
12. Warranties. OctopusCity.com warrants to Subscriber that the Services shall perform substantially consistent with the published specifications
therefore for the term of this Agreement. OctopusCity.com`s sole obligation or liability under this warranty shall be to correct any reproducible error
in the Services, in a reasonable time, to perform substantially in accordance with the published OctopusCity.com specifications thereof, upon
written notice of its failure to so perform from the Subscriber containing documentary evidence sufficient to allow OctopusCity.com to replicate the
error. OctopusCity.com does not warrant that the Services will be uninterrupted or error-free. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, OCTOPUSCITY.COM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. OCTOPUSCITY.COM MAKES
NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES USED IN CONNECTION WITH THE
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES
ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
13. Consequential Damages; Limitation of Liability.
(a) Consequential Damages. OCTOPUSCITY.COM SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE TO SUBSCRIBER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES,
INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY,
DATA, RIGHTS OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS OF USE OF FUNCTIONALITY, DATA OR
EQUIPMENT, EVEN IF OCTOPUSCITY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY
THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
(b) Limitation of Liability. IN NO EVENT SHALL OCTOPUSCITY.COM BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PAYMENTS
MADE BY SUBSCRIBER TO OCTOPUSCITY.COM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE
FIRST EVEN GIVING RISE TO SUCH LIABILITY, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT
LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
(c) Acknowledgement. THE PARTIES ACKNOWLEDGE THAT OCTOPUSCITY.COM HAS SET ITS PRICES AND ENTERED INTO THIS
AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET
FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS FO THE BARGAIN BETWEEN THE PARTIES. THE
PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL
SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE FEES PAYABLE BY SUBSCRIBER
REFLECT THIS ALLOCATION OF RISK.
14. Availability. OctopusCity.com shall use commercially reasonable efforts to maintain the availability of its Web Service Pages and to provide
the Services on a twenty-four (24) hour basis (excluding scheduled maintenance and downtime and failures beyond OctopusCity.com`s reasonable
control), and to back up the Service Pages at least once a week, with such back-up copies stored in a safe and secure environment geographically
separate from OctopusCity.com`s web server(s). Notwithstanding the foregoing, OctopusCity.com does not warrant the availability of the Web
Service or the Services and OctopusCity.com shall not be liable for any failure of OctopusCity.com or OctopusCity.com`s vendors with regard to
the unavailability of the Web Service Pages or the Services due to the failure of systems, equipment, services, third party software, a disruption in
the connection between any servers and the Internet, any server or telecommunications anomalies or any other cause outside of the control of
OctopusCity.com or its vendors.
15. Termination. In addition to its rights as set forth elsewhere in this Agreement:
(a) For Convenience. OctopusCity.com may terminate this agreement upon email notification to Subscriber via an authenticated email address.
(b) For Cause. OctopusCity.com shall have the right to terminate this Agreement immediately without notification for:
(i) violation or breach by Subscriber, its officers, directors, or employees of any provisions of this Agreement, including, but not limited to, payment;
(ii) the termination of the business of the Subscriber;
(iii) voluntary or involuntary filing of bankruptcy petition or similar proceeding under applicable state law with respect to Subscriber; or
(iv) Subscriber`s becoming insolvent or making any assignment for the benefit of creditors.
(c) Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) OctopusCity.com shall terminate Subscriber`s
access to the Web Service Pages and the Services; (ii) OctopusCity.com shall have the right to maintain copies of all Data for archival and other
permissible purposes; (iii) Subscriber shall remain liable for and pay to OctopusCity.com all fees due for Services provided through the date of
termination and all fees which would have been due to OctopusCity.com through the end of the then-current period had the Agreement not been
(d) You acknowledge and agree that if Octopuscity.com disables access to your account, you may be prevented from accessing the Services, your
account details or any files or other content which is contained in your account
16. Dispute Resolution Procedure. In the event of any dispute arising out of or related to this Agreement (a “Dispute”) and prior to invoking any
termination remedy or initiating litigation, the following resolution procedure must be followed. The party invoking the dispute resolution procedure
will provide the other party with a written notice detailing the nature of the Dispute (a “Dispute Notice”). Each party shall select a relationship
manager with authority to resolve the Dispute, and the relationship managers shall meet within ten (10) days from receipt of the Dispute Notice. In
the event that the relationship managers are unable to resolve the Dispute within ten (10) days from their first meeting, an officer of each party
shall meet within five (5) days thereafter to discuss and look toward a mutually satisfactory resolution of the Dispute. In the event that the officers
are unable to resolve the Dispute within ten (10) days from their first meeting, the parties will submit the Dispute to non-binding mediation in New
York in accordance with the rules of the American Arbitration Association. At each stage in the escalation process, the parties agree that they will
consider all good faith and reasonable solutions and exercise all reasonable efforts to resolve the Dispute.
17. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be
considered a breach of this Agreement if such delay is caused by a labor dispute; shortage of materials; fire; earthquake; flood; or any other event
beyond the reasonable control of such party, provided that such party uses commercially reasonable efforts, under the circumstances, to notify the
other party of the circumstances causing the delay and to resume performance as soon as possible.
statement of the terms and conditions between the parties, which supersede and merge all prior proposals, understandings and all other
agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written
instrument duly executed by both parties.
(b) Taxes. Subscriber shall, in addition to the payments required hereunder, pay all sales, use, transfer or other taxes and all duties, whether
international, national, state or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby;
excluding, however, income taxes on profits which may be levied against Front Office. Subscriber shall reimburse OctopusCity.com for any amount
of any such taxes or duties paid or accrued by OctopusCity.com as a result of this Agreement and the transactions contemplated hereby.
(c) Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of New York without reference to its
conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(d) Enforceability. If any of the provisions of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed
(e) Assignment. Subscriber may not assign or sub-license, without prior written consent of OctopusCity.com, its rights, duties or obligations under
this Agreement, in whole or in part, to any person or entity. Any such attempted assignment or sub-license shall be void and shall constitute a
material breach of this Agreement. This Agreement shall be binding upon the parties and their successors and assigns.
(f) Survival. Sections 4(b) (Aggregated Data), 6 (Fees and Payment), 9 (Confidentiality), 10 (No Warranty or Guarantee), 11 (Indemnity), 12
(Warranties), 13 (Limitation of Liability), 15(c) (Effect of Termination), 16 (Dispute Resolution Procedure) and 18 (General) shall survive the
termination of this Agreement.
(g) Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt
thereof; (ii) if mailed, three (3) days after deposit in the U.S. mail, postage paid, certified mail return receipt requested; (iii) if mailed by Express Mail
or Federal Express, one (1) day after deposit therewith postage prepaid. All notices shall be addressed to the parties at the respective addresses
(h) No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any
further right hereunder.
(i) Remedies. The rights and remedies of OctopusCity.com set forth in this Agreement are not exclusive and are in addition to any other rights and
remedies available to it in law or in equity.
(j) Headings. The headings used in this Agreement are for reference only, do not form a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement.
(k) Counterparts. This Agreement may be signed in two counterparts, each of which will be deemed an original and which will together constitute
(l) English Language. English is the authoritative text of this Agreement and all communications and adjudications hereunder will be made and
conducted in English.
19. Service Ownership.
(a) You acknowledge and agree that OctopusCity.com owns all legal right, title and interest in and to the Services, including any intellectual
property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may
(a) The Downloadable Software which you use may automatically download and install updates from time to time from OctopusCity.com. These
updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software
modules and completely new versions. You agree to receive such updates (and permit OctopusCity.com to deliver these to you as part of your use
of the Services.
21. Changes to Terms of Service:
will be notified through a posting on the home page of OctopusCity.com. Please chack this site regularly for updates to these documents.
330 Madison Ave, 6th Fl
New York, NY 10017