Terms and Conditions
OPTONAL INC.
TERMS OF USE AGREEMENT
Last Updated: March 22, 2023
Welcome to OpTonal Inc. (“OpTonal”, “we”, “us”, “our”)! Please read this Terms of Use Agreement (this “Agreement”) carefully. This Agreement governs your access and use of our Services (as defined below) as well as your access and use of the website located at optonal.com (the “Website”), and the content available on the Website and Services (collectively, the “Platform”).
BY ACCESSING OR USING THE PLATFORM, CLICKING “I ACCEPT”, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE PLATFORM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH OPTONAL AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE PLATFORM AND YOU MUST PROMPTLY EXIT THE PLATFORM AND STOP USING THE SERVICES. IN THIS AGREEMENT, THE TERMS “YOU” AND “YOUR” MEAN YOU, AS THE VISITOR OR THE USER OF THE PLATFORM.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OPTONAL’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 5.2 (AUTOMATIC RENEWAL) BELOW.
PLEASE BE AWARE THAT SECTION 12 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND OPTONAL HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 12 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND OPTONAL BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND OPTONAL WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
Please note that this Agreement is subject to change by OpTonal in our sole discretion at any time. When changes are made, we will make a new copy of the Agreement available on the Website and update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Platform and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform and terminate your Account with us. Otherwise, your continued use of the Platform constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.
Services Overview. OpTonal offers an automated sales role-play tool that is designed to allow business customers with sales teams to analyze audio recordings derived from sales calls and improve the outcome of such sales calls (“Services”). By using the Services, you agree that you are: (i) responsible for compliance with all laws relating to the recording functionality of the Services, including call recording, wiretap, monitoring, eavesdropping, and similar laws; and (ii) giving OpTonal consent to create and store your recordings if such recordings are saved on the Services. If you do not consent to being recorded, or to be responsible for giving all notices to and obtaining all rights and consents from other individuals to being recorded, you can choose not to use the Services.
Limited License. The Platform and the information and content available on the Platform are protected by copyright laws throughout the world. Subject to the terms of this Agreement, OpTonal grants you a limited license to use and access the Platform and reproduce information obtained from the Platform solely for your personal use and in no circumstances for any commercial purpose. OpTonal, its suppliers and service providers reserve all rights not granted in this Agreement.
Updates. You understand that the Platform is constantly evolving. You acknowledge and agree that OpTonal may update the Platform with or without notifying you. Any future release, update or other addition to the Platform shall be subject to this Agreement. You may need to update third-party software from time to time in order to use the Platform.
Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of it; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other properties owned or licensed by OpTonal (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using OpTonal’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Platform or any information contained therein may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. OpTonal may terminate the licenses granted hereunder and this Agreement immediately if you breach any part of this Section 1.4 or engage in any other unauthorized use of the Platform.
OpTonal Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us may include but are not limited to operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning OpTonal and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
REGISTRATION.
Registering Your Account. In order to access certain features of the Platform, you must be a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered for an account on the Website (“Account”) or has a valid account on a social networking service, such as Google (“SNS”) through which the user has connected to the Platform (each such account, a “SNS Account”). Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of OpTonal.
Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you may link your Account with SNS Accounts by allowing OpTonal to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant OpTonal access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating OpTonal to pay any fees or making OpTonal subject to any usage limitations imposed by such SNS. By granting OpTonal access to any SNS Accounts, you understand that OpTonal may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or OpTonal’s access to such SNS Account is terminated by the SNS, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND OPTONAL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. OpTonal makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and OpTonal is not responsible for any SNS Content.
Registration Data. In registering an account on the Application, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Platform under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Platform by minors. You may not share your Account or password with anyone, and you agree to (y) notify OpTonal immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or OpTonal has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, OpTonal has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. OpTonal reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Platform if you have been previously removed by OpTonal, or if you have been previously banned from any OpTonal product or service.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Platform including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Platform.
RESPONSIBILITY FOR CONTENT.
Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not OpTonal, are entirely responsible for all Content that you upload, post, e-mail transmit, generate, input or otherwise make available (“Make Available”) through the Platform, including via the Services (“Your Content”), and that you and other Registered Users of the Platform, and not OpTonal, are similarly responsible for all Content that you and they Make Available through the Platform (“User Content”).
Representations and Warranties. If you Make Available any User Content, you represent and warrant that you have provided all notices and obtained all rights, consents, waivers, and authorizations as may be necessary to grant the rights and licenses in your User Content granted under the Agreement and for your User Content to be used in accordance with this Agreement and the functionality of the Services without causing a violation of the rights of others, including, without limitation, all necessary notices, rights, consents, waivers, and authorizations under: (a) any performance, mechanical, and sound recording rights in musical compositions and sound recordings included in your User Content; (b) any rights of privacy or publicity with respect to the name, image, and likeness of any individual included in your User Content; (c) any moral, droit moral, or authors rights to works of authorship included in your User Content; and (d) all laws relating to the recording functionality of the Services, including call recording, wiretap, monitoring, eavesdropping, and similar laws.
No Obligation to Pre-Screen Content. You acknowledge that OpTonal has no obligation to pre-screen Your Content or User Content, although OpTonal reserves the right in its sole discretion to do so and to refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation images, scans, texts, or other user inputs. In the event that OpTonal pre-screens, refuses or removes any Content, you acknowledge that OpTonal will do so for OpTonal’s benefit, not yours. Without limiting the foregoing, OpTonal shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
Storage. While the Service allows Registered Users to store and retrieve Content on OpTonal’s cloud-based servers, OpTonal has no obligation to store any of Your Content that you Make Available on the Platform. OpTonal has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform. Certain features may enable you to specify the level at which the Platform shares or restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that OpTonal retains the right to create reasonable limits on OpTonal’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Platform and as otherwise determined by OpTonal in its sole discretion.
OWNERSHIP.
Platform. Except with respect to Your Content and User Content, you agree that OpTonal and its suppliers own all rights, title and interest in the Platform (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform.
Trademarks. The graphics, logos, service marks and trade names used on or in connection with the Platform are the trademarks of OpTonal and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Platform are the property of their respective owners.
Your Content. OpTonal does not claim ownership of Your Content. However, when you as a Registered User input, post or publish Your Content on or in the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
License to Your Content. Subject to any applicable account settings that you select, you grant OpTonal a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole, part or in aggregated form) for the purposes of operating and providing the Platform and Services to you and to our other Registered Users, and on an aggregated, de-identified basis, for the purposes of improving the Platform and Services and OpTonal’s other products and services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not OpTonal, are responsible for all of Your Content that you Make Available on or in the Platform or Services.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to OpTonal through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that OpTonal has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to OpTonal a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform and/or OpTonal’s business.
SUBSCRIPTION FEES AND PAYMENT.
Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide OpTonal with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”) to access certain features of the Platform. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. OpTonal uses third party payment processors, which may include Stripe, Inc. and its affiliates as its third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Payment Processor”). By completing a payment on our Platform, you agree to be bound by the Payment Processor’s privacy policy and its terms of service and hereby consent and authorize OpTonal and its Payment Processor to share any information and payment instructions you provide with one or more Payment Processor(s) to the extent required to complete your transactions. By providing your credit card number and associated payment information, you agree that OpTonal, or its Payment Processor on OpTonal’s behalf, is authorized to immediately invoice your Account for all fees as they become due and payable and that no additional notice or consent is required. You agree to immediately update your payment settings with any changes in your billing address or the credit card used for payment hereunder. By providing OpTonal with your credit card number or PayPal account and associated payment information, you agree that OpTonal is authorized to immediately invoice your Account for all fees and charges due and payable to OpTonal hereunder and that no additional notice or consent is required. You agree to immediately notify OpTonal of any change in your billing address or the credit card or PayPal account used for payment hereunder. OpTonal reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Platform or by e-mail delivery to you.
Subscription Fees; Automatic Renewal. OpTonal offers subscription plans for both individual users and team users (a “Subscription”). Your Subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your Subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at OpTonal’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from OpTonal that your Subscription will be automatically renewed, you will have thirty (30) days from the date of the OpTonal notice), please contact OpTonal at info@optonal.com. If you cancel your Subscription, you may use your Subscription until the end of your then-current subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize OpTonal to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your Subscription, if OpTonal does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that OpTonal may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
Cancellations and Refunds. You can cancel your Subscription by signing on to your Account and following the instructions for cancelling your Subscription or by e-mailing us at info@optonal.com. All payments are nonrefundable. If you cancel your Subscription, or if your account is terminated under this Agreement, you will not receive a refund or credit, including for partial periods of service.
Taxes. The payments required under Section 5.2 (Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If OpTonal determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, OpTonal shall collect such Sales Tax in addition to the payments required under Section 5.2 (Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to OpTonal, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify OpTonal for any liability or expense OpTonal may incur in connection with such Sales Taxes. Upon OpTonal’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
USER CONDUCT. As a condition of use, you agree not to use the Platform for any purpose that is prohibited by this Agreement or by applicable law, and you agree that you shall not violate any such applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the provision of a notice and/or obtaining the consent of subjects of audio and video recordings (and you agree that you are solely responsible for compliance with all such laws). You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Platform that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of OpTonal; (vi) interferes with or attempt to interfere with the proper functioning of the Platform or uses the Platform in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Platform, including but not limited to violating or attempting to violate any security features of the Platform, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Platform, introducing viruses, worms, or similar harmful code into the Platform, or interfering or attempting to interfere with use of the Platform by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”.
INVESTIGATIONS. If OpTonal becomes aware of any possible violations by you of any provision of this Agreement, OpTonal reserves the right to investigate such violations, and OpTonal may, at its sole discretion, immediately terminate your license to use the Platform, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INDEMNIFICATION. You agree to indemnify and hold OpTonal, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “OpTonal Party” and collectively, the “OpTonal Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, the Platform; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. OpTonal reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with OpTonal in asserting any available defenses. This provision does not require you to indemnify any of the OpTonal Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Platform or any services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Platform.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM AND ANY INFORMATION THEREFROM IS AT YOUR SOLE RISK, AND THE PLATFORM AND ALL INFORMATION CONTAINED THEREON IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. OPTONAL PARTIES EXPRESSLY DISCLAIM REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE SERVICES, AND ANY CONTENT, INFORMATION, PRODUCT, SERVICE OR OTHER MATERIALS PROVIDED ON OR THROUGH THE PLATFORM OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE QUALITY, ACCURACY, COMPLETENESS OR TIMELINESS OF INFORMATION, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. SOME LAWS DO NOT ALLOW THE LIMTIATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.
OPTONAL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. OPTONAL MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE PLATFORM OR ITS CONTENT.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT OPTONAL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OPTONAL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL OPTONAL PARTIES BE LIABLE FOR ANY LOSS OF DATA, LOSS OF YOUR DATA, OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, IN EACH CASE WHETHER OR NOT OPTONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE PLATFORM; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (D) ANY OTHER MATTER RELATED TO THE PLATFORM, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A OPTONAL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A OPTONAL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A OPTONAL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE OPTONAL PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION OF ANY KIND ARISING OUT OF USE OF THE SERVICES SHALL NOT EXCEED ONE HUNDRED DOLLARS (USD $100). THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A OPTONAL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A OPTONAL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A OPTONAL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. EXCEPT FOR OPTONAL’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE OPTONAL’S PRIVACY POLICY, OPTONAL ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPTONAL AND YOU.
TERM AND TERMINATION.
Term. This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Platform or maintain an Account, unless terminated earlier in accordance with this Agreement.
Termination by OpTonal. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case OpTonal will refund subscription fee, if already paid pursuant to Section 5.1 (Payment) or 5.2 (Subscription Fees), for the applicable Service. Except as set forth above, the subscription fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if OpTonal is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), OpTonal has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in OpTonal’s sole discretion and that OpTonal shall not be liable to you or any third party for any termination of your Account.
Termination by You. If you want to terminate the Services provided by OpTonal, you may do so by (a) notifying OpTonal at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to OpTonal’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 5.2 (AUTOMATIC RENEWAL).
Effect of Termination. Termination of your Account includes removal of access to the Platform and barring of further use of the Platform, and also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of your Account, your right to use the Platform will automatically terminate immediately. You understand that any termination of your Account may involve deletion of Your Content associated therewith from our live databases. OpTonal will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of your Account, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
ARBITRATION AGREEMENT. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and OpTonal arbitrate disputes against one another. PLEASE BE AWARE THAT THIS SECTION 12 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND OPTONAL HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND OPTONAL BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 12 CAREFULLY.
Applicability of Arbitration Agreement*.* Subject to the terms of this Arbitration Agreement, you and OpTonal agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Platform or the Services, any communications you receive, any products sold or distributed through the Platform, the Services, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and OpTonal may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or OpTonal may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and OpTonal. If that occurs, OpTonal is committed to working with you to reach a reasonable resolution. You and OpTonal agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and OpTonal therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to OpTonal that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to info@optonal.com or regular mail to our offices located at 251 Little Falls Drive, Wilmington, DE. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND OPTONAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and OpTonal are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. YOU AND OPTONAL AGREE THAT, EXCEPT AS SPECIFIED IN THE SUBSECTION ENTITLED “BATCH ARBITRATION”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and OpTonal agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or OpTonal from participating in a class-wide settlement of claims.
Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and OpTonal agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and OpTonal otherwise agree, or the Batch Arbitration process discussed in the subsection entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and OpTonal agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the subsection entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or OpTonal need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and OpTonal agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against OpTonal by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by OpTonal.
You and OpTonal agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: info@optonal.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with OpTonal as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if OpTonal makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to OpTonal at info@optonal.com, your continued use of the Platform following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any products distributed through the Platform or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to Agreement) remain in full force and effect. OpTonal will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
THIRD-PARTY SERVICES. The Platform may contain links to third-party websites, applications and advertisements for third parties (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Platform and are subject to the terms and conditions (including privacy policies) of such Third-Party Service. Such Third-Party Services are not under the control of OpTonal. OpTonal is not responsible for any Third-Party Services. OpTonal provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Service, or any product or service provided in connection therewith. You use all links in and to Third-Party Services at your own risk. When you leave our Platform, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party
GENERAL PROVISIONS.
Electronic Communications. The communications between you and OpTonal may take place via electronic means, whether you visit the Platform or send OpTonal e-mails, or whether OpTonal posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from OpTonal in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OpTonal provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without OpTonal’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. OpTonal shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, epidemics, government orders, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: info@optonal.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and OpTonal agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
Notice. Where OpTonal requires that you provide an e-mail address, you are responsible for providing OpTonal with your most current e-mail address. In the event that the last e-mail address you provided to OpTonal is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, OpTonal’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to OpTonal by email at info@optonal.com or by regular mail to our offices located at 251 Little Falls Drive, Wilmington, DE. Such notice shall be deemed given when received by OpTonal by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Severability; Waiver. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Export Control. You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Platform, and any other applicable laws. In particular, but without limitation, any information contained within the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, 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. You acknowledge and agree that products, services or technology provided by OpTonal are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer OpTonal products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.