Effective as of 11/9/2020
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 1.4 (ODEKO COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
USE OF THE SERVICES AND ODEKO PROPERTIES. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) and all prior versions or branding of the Application, the Website and the Services (including the Cloosiv application) (each, an “Odeko Property” and collectively, the “Odeko Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Odeko grants you a limited license to reproduce portions of Odeko Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Odeko in a separate license, your right to use any and all Odeko Properties is subject to the Agreement.
Application License. Subject to your compliance with the Agreement, Odeko grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
Updates. You understand that Odeko Properties are evolving. As a result, Odeko may require you to accept updates to Odeko Properties that you have installed on your computer or mobile device. You acknowledge and agree that Odeko may update Odeko Properties with or without notifying you. You may need to update third-party software from time to time in order to use Odeko Properties.
Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Odeko Properties or any portion of Odeko Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Odeko Properties (including images, text, page layout or form) of Odeko; (c) you shall not use any metatags or other “hidden text” using Odeko’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 Odeko Properties 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 Odeko Properties 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 Odeko Properties. Any future release, update or other addition to Odeko Properties shall be subject to the Agreement. Odeko, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Odeko Property terminates the licenses granted by Odeko pursuant to the Agreement.
Odeko Communications. By entering into this Agreement or using the Odeko Properties, you agree to receive communications from us, including via messages through the Application, e-mail, text message and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Odeko Properties, updates concerning new and existing features on the Odeko Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Odeko and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL MATERIALS, YOU CAN (A) UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF AND/OR (B) UNSUBSCRIBE FROM PUSH NOTIFICATIONS BY FOLLOWING THE OPTIONS IN THE APPLICATION. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, YOU MAY TEXT “END” TO [____] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS AS A CONDITION OF USING THE ODEKO PROPERTIES OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO [___] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE ODEKO PROPERTIES OR RELATED SERVICES.
Registration Data. In registering an account on the Website, 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 thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Odeko Properties 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 Odeko Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Odeko 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 Odeko has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Odeko has the right to suspend or terminate your Account and refuse any and all current or future use of Odeko Properties (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 per platform. Odeko 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 Odeko Properties if you have been previously removed by Odeko, or if you have been previously banned from any of Odeko Properties.
Your 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 Odeko.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Odeko Properties, including but not limited to, a mobile device that is suitable to connect with and use Odeko Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Odeko Properties.
RESPONSIBILITY FOR CONTENT.
No Obligation to Pre-Screen Content. You acknowledge that Odeko has no obligation to pre-screen Content (including, but not limited to, User Content), although Odeko reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the 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 chat, text, or voice communications. In the event that Odeko pre-screens, refuses or removes any Content, you acknowledge that Odeko will do so for Odeko’s benefit, not yours. Without limiting the foregoing, Odeko shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Odeko in writing elsewhere, Odeko has no obligation to store any of Your Content that you Make Available on Odeko Properties. Odeko 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 Odeko Properties. Certain Services may enable you to specify the level at which such Services restrict 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 Odeko retains the right to create reasonable limits on Odeko’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 Website and as otherwise determined by Odeko in its sole discretion.
Trademarks. The Odeko name and all related graphics, logos, service marks and trade names used on or in connection with any Odeko Properties or in connection with the Services are the trademarks of Odeko 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 Odeko Properties are the property of their respective owners.
Your Content. Odeko does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Odeko Properties, you represent that you own and/or have an appropriate license to use and display Your Content (in whole or in part)on the Odeko Properties.
Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Odeko Properties, you hereby expressly permit Odeko to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Odeko through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Odeko 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 Odeko 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 Odeko Properties and/or Odeko’s business.
USER CONDUCT. As a condition of use, you agree not to use Odeko Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Odeko Properties that: (i) infringes any intellectual property right of any person or entity; (ii) is threatening, abusive, or otherwise offensive; (iii) constitutes unsolicited advertising; (iv) impersonates any person or entity, including any employee or representative of Odeko; (v) interferes with or attempt to interfere with the proper functioning of Odeko Properties or uses Odeko Properties in any way not expressly permitted by this Agreement; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against Odeko Properties, including but not limited to violating or attempting to violate any security features of Odeko Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Odeko Properties, introducing viruses, worms, or similar harmful code into Odeko Properties, or interfering or attempting to interfere with use of Odeko Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Odeko Properties.
INVESTIGATIONS. Odeko may, but is not obligated to, monitor or review Odeko Properties and Content at any time. Without limiting the foregoing, Odeko shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Odeko does not generally monitor user activity occurring in connection with Odeko Properties or Content, if Odeko becomes aware of any possible violations by you of any provision of the Agreement, Odeko reserves the right to investigate such violations, and Odeko may, at its sole discretion, immediately terminate your license to use Odeko Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS.
Content Provided by Other Users. Odeko Properties may contain User Content provided by other Registered Users. Odeko is not responsible for and does not control User Content. Odeko has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
FEES AND PURCHASE TERMS.
You understand that the prices for product or menu items displayed through the Platform may differ from the prices offered or published by Businesses for the same product or menu items and/or from prices available at other third-party websites/mobile applications. Prices for product or menu items displayed through the Platform may not be the lowest prices at which the product or menu items are sold. Odeko does not control how much a Business will charge for a particular product or menu item.
Certain features of the Platform, including placing orders, may require you to pay fees to Odeko. Odeko may change, or add, fees for use of our Platform at any time as we deem necessary or appropriate. You will have an opportunity to review and accept the fees that you will be charged, as applicable. In all cases, you acknowledge and accept that a fee will be charged and you agree to pay said fee.
Odeko will charge the payment method you specify at the time of purchase or as otherwise specified by you in your Account.
Odeko, in its sole discretion, may provide users with product credits, or make promotional offers with different features and different rates to any consumers. These credits and offers may be used for future transactions on the Platform. Such credits or offers are non-transferrable, may not be resold, and are not redeemable for cash or other consideration. Odeko reserves its right to expire, limit, or modify any credits or promotion at any time. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future credits or promotional offers and any other forms of unredeemed value in or associated with your Account without prior notice to you.
Returns and Refunds. Odeko does not sell goods or services, but only provides a platform for transactions between Businesses and their customers while the customer is on the Businesses’ premises. Odeko does not have any return or refund policy, and all refunds or returns shall be in accordance with the return and refund policy of the applicable Business. If you are not satisfied with any goods or services you have purchased, please be in direct contact with the applicable Business. Notwithstanding the above, if an accidental price discrepancy between the actual price in the store and the payment processed via the Services is discovered following the use the Services, contact Odeko at [ ] to resolve such discrepancy.
Advertising Revenue. Odeko reserves the right to display third-party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Odeko has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Odeko as a result of such advertising).
Indemnification. You agree to indemnify and hold Odeko, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Odeko Party” and collectively, the “Odeko 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, any Odeko Property; (c) your violation of the 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. Odeko 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 Odeko in asserting any available defenses. This provision does not require you to indemnify any of the Odeko 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 Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Odeko Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF ODEKO PROPERTIES IS AT YOUR SOLE RISK, AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ODEKO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING:
ODEKO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) ODEKO PROPERTIES OR THE BUSINESSES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF ODEKO PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF ODEKO PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH ODEKO PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS ODEKO PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ODEKO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ODEKO OR THROUGH ODEKO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Odeko may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Odeko’s sole discretion. The provisions of this section apply with full force to such features or tools.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ODEKO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ODEKO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING BUSINESSES AND ANY PRODUCTS OBTAINED FROM SUCH BUSINESSES, AS WELL AS OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF ODEKO PROPERTIES. YOU UNDERSTAND THAT ODEKO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF ODEKO PROPERTIES. ODEKO MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ODEKO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY BUSINESS OR USER CONTENT OBTAINED THROUGH ODEKO PROPERTIES.
Third-Party Materials. As a part of Odeko Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Odeko to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, ODEKO PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Odeko by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (b) $20; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.
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 ODEKO AND YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Odeko’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Odeko by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Odeko Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Odeko Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Odeko’s Copyright Agent for notice of claims of copyright infringement is as follows: [Include name or title, and physical address of Copyright Agent.
MONITORING AND ENFORCEMENT. Odeko reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Odeko Properties or the public, or could create liability for the Odeko; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Odeko Properties; and/or (e) terminate or suspend your access to all or part of the Odeko Properties for any or no reason, including without limitation, any violation of this Agreement.
TERM AND TERMINATION.
Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Odeko Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Odeko Properties, unless earlier terminated in accordance with the Agreement.
Termination of Services by Odeko. Odeko 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 Odeko’s sole discretion and that Odeko shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate the Services provided by Odeko, you may do so by closing your Account for all of the Services that you use.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services 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 any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Odeko will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
No Subsequent Registration. If your registration(s) with, or ability to access, Odeko Properties or any other Odeko community, is discontinued by Odeko due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Odeko Properties or any Odeko community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Odeko Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Odeko reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Odeko and limits the manner in which you can seek relief from us.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Odeko will pay them for you. In addition, Odeko will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Odeko. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND ODEKO 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 Odeko are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, 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. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of [_______________]. All other disputes, claims, or requests for relief shall be arbitrated.
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: [insert email address], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Odeko username (if any), the email address you used to set up your Odeko 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.
Severability. Except as provided in Section 15.5 (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.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Odeko.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Odeko makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Odeko at the following address: [________________________].
App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Odeko and not with the App Store. Odeko, not the App Store, is solely responsible for Odeko Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Odeko Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Odeko Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Odeko and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Odeko.
You and Odeko acknowledge that, as between Odeko and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Odeko acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Odeko and Apple, Odeko, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and Odeko acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Release. You hereby release Odeko Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Odeko Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Odeko Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Odeko Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website [or any Services provided hereunder].
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Odeko’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Odeko 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If you a United Kingdom resident and if a force majeure event occurs that affects Odeko’s performance of its obligations under the Agreement: (a) Odeko will contact you as soon as reasonably possible to notify you; and (b) Odeko’s obligations under the Agreement will be suspended and the time for Odeko’s performance of its obligations will be extended for the duration of the force majeure event.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Odeko Properties, please contact us at: [_________]. 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 [______], consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT. IF AND ONLY IF YOU ARE A RESIDENT OF THE UNITED KINGDOM Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Notice. Where Odeko requires that you provide an e-mail address, you are responsible for providing Odeko with your most current e-mail address. In the event that the last e-mail address you provided to Odeko is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Odeko’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Odeko at the following address: [______]. Such notice shall be deemed given when received by Odeko by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. 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.
Export Control. You may not use, export, import, or transfer Odeko Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Odeko Properties, and any other applicable laws. In particular, but without limitation, Odeko Properties 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 Odeko Properties, 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 also will not use Odeko Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Odeko 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 Odeko 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. The 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.
End of Agreement