This ODG Website User Agreement ("Agreement") governs access to and use of the Reticle AppCenter and any other websites, mobile sites and other sites (collectively "ODG Site") that link to this Agreement and which are offered by Osterhout Group, Inc. (d/b/a Osterhout Design Group), a Delaware corporation with principal place of business at 153 Townsend Street, Suite 570, San Francisco, CA 94107 (“ODG”).
THE ODG SITE AND ODG'S PRODUCTS AND SERVICES ARE NOT FOR CONSUMERS OR PRIVATE OR HOUSEHOLD PURPOSES, ONLY FOR BUSINESSES AND PROFESSIONAL USERS. YOU MUST NOT ACCESS OR USE ANY ODG SITE, PRODUCTS OR SERVICES, UNLESS (A) YOU ACT FOR A BUSINESS OR OTHER ORGANIZATION, (B) YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOURSELF AND YOUR ORGANIZATION, AND (C) YOU ARE AUTHORIZED TO ACT ON BEHALF OF YOUR ORGANIZATION. IF YOU ACCESS OR USE THE RETICLE APPCENTER OR ANY OF OUR SERVICES, SITES OR PRODUCTS, YOU FORM OR CONFIRM A LEGALLY BINDING CONTRACT BASED ON THE TERMS OF THIS AGREEMENT BETWEEN YOU AND YOUR ORGANIZATION (COLLECTIVELY REFERRED TO AS "YOU" HEREINAFTER) AND ODG.
IF YOU HAVE NOT READ THE WEBSITE USER AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE WEBSITE USER AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE WEBSITE USER AGREEMENT (E.G., IF YOU ARE ACTING FOR PRIVATE OR HOUSEHOLD PURPOSES OR IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT USE OUR ODG SITE.
ODG reserves the right, at its sole discretion, to change, modify, add or remove portions of this Website User Agreement at any time. It is your responsibility to check this Website User Agreement periodically for changes. Your continued use of the ODG Site following the posting of changes will mean that you accept and agree to the changes.
Note that disputes about this website user agreement or relating to the osg site generally must be resolved by binding arbitration and on an individual basis only. See Section 21 below for more details.
1. DESCRIPTION OF THE ODG SITE AND ODG SERVICE; OPERATION.
ODG provides augmented reality / virtual reality hardware and software and related peripheral devices (collectively “ODG Product(s)”) that can operate independently or be managed through software applications including embedded software (each application, an “App”).
The “ODG Service” shall include the ODG Site, including any ODG materials on the ODG Site, ODG Product, or ODG App or any other software, service or content offered by ODG or its third-party providers to you through the ODG Site or the Reticle AppCenter.
The specific features and functionality of the ODG Service are dynamic and may change from time to time. We reserve complete and sole discretion with respect to the operation of the ODG Service. We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of the ODG Service at any time.
2. USE OF THE ODG SERVICE.
You are solely responsible for your use of the ODG Service. By using the ODG Service you acknowledge that your use of the ODG Service is solely at your own risk. Use of the App or any other downloadable software components provided by ODG are subject to this Website User Agreement and any Additional Terms provided by ODG. You also acknowledge that the ODG Service may include newly developed electronics and software and are subject to the inherent performance risks for new technology.
ODG reserves the right to deny access to the ODG Service at our discretion and for any reason, including any breach of the Website User Agreement.
3. ADDITIONAL TERMS.
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the ODG Service, all of which terms are made a part of this Website User Agreement by this reference, including but not limited to those listed below. You agree to abide by the Additional Terms, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between this Website User Agreement and the terms posted for or applicable to a specific portion of the ODG Service or for any service or product offered on or through the ODG Service, the latter terms shall control with respect to your use of that portion of the ODG Service or the specific service or product.
ODG’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this ODG Site should be construed to alter such agreements.
In addition to this Website User Agreement, the following additional terms may apply to your use of the ODG Service:
4. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS.
a. Account Information. For security purposes, in order to access the ODG Service and use the ODG Products, you have to create an account with an ODG ID and verify your identity. You hereby represent and warrant that the information you provide to ODG upon registration will be true, accurate, current, and complete and you will maintain it as true, accurate and complete. b. Your ODG ID. Using the ODG Service and accessing Content requires an ODG ID. An ODG ID is the account you use across ODG’s ecosystem, including your ODG Product, our Reticle AppCenter, and any other ODG Sites. Your ODG ID is valuable, and you are responsible for maintaining its confidentiality and security. ODG is not responsible for any losses arising from the unauthorized use of your ODG ID. Please contact ODG if you suspect that your ODG ID has been compromised.
You must be thirteen (13) years or older to create an ODG ID and use the ODG Service. ODG IDs for persons under this age can be created by a parent or legal guardian. Children under the age of majority should review this Agreement with their parent or guardian to ensure that the child and parent or legal guardian understand it.
Your ODG Product can only be associated one ODG ID at a time.
c. Password. As a registered user, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by any third party. As you will be responsible for all activity that occurs under your account, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify ODG by e-mail. You are solely responsible and liable for your own losses or losses incurred by ODG and others due to any unauthorized use of your account. You may not use any other person’s ODG ID, password, or account at any time without the express permission of the holder of that ODG ID, password, or account.
ODG cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
5. INACCURACIES ON THE ODG SERVICE.
A possibility exists that the ODG Service could include inaccuracies or errors and that additions, deletions, and alterations could be made to the ODG Service by unauthorized third-parties. Although ODG attempts to ensure the integrity of the ODG Service, it makes no guarantees as to the completeness, correctness, or accuracy of the ODG Service or any of the content on the ODG Service. If you believe any portion of the ODG Service includes an error or inaccuracy, please notify us.
6. AVAILABILITY OF THE ODG SERVICE.
It is not possible to operate the ODG Service with 100% guaranteed uptime. ODG will make reasonable efforts to keep the ODG Service operational. However, certain technical difficulties, routine site maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of our Service. In addition, ODG reserves the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of the ODG Service, with or without notice.
You agree that ODG shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to the ODG Service.
7. THIRD PARTY CONTENT.
a. General. Third parties not affiliated with ODG may offer or display through the Reticle AppCenter or other parts of the ODG Site or ODG Service various materials and content, including, without limitation,Apps (“Third Party Materials”). The display on or through the ODG Service of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by ODG of any third party or any affiliation between any such third party and ODG. Furthermore, in using and accessing the ODG Service, you agree that ODG is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. ODG’s display of specific Third Party Materials does not suggest a recommendation by ODG of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the ODG Service (whether online or offline) is at your own risk, and ODG will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party. Any license, purchase or other terms regarding Third Party Materials are between You and the third party offering the materials; ODG is not a party to such terms or resulting agreements and not bound or responsible under agreements between You and third parties.
b. Third Party Links and References. The ODG Service may contain references or links to third-party materials and websites not controlled by ODG. ODG provides such information and links solely as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that ODG is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the ODG Service. You agree that ODG is not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Materials. If you access, visit, or use any Third Party Materials referred to on the ODG Service, you do so at your own risk.
8. PERMITTED USE.
Certain ODG Materials (as defined below) on the ODG Service are protected by intellectual property laws, including but not limited to U.S. copyright laws. You expressly acknowledge and agree that the content accessible within the ODG Service that is not expressly designated as being provided by a third party is the property of ODG and its content providers, and ODG and its content providers retain all right, title, and interest in the content.
Subject to the terms of this Website User Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to access and use the ODG Service and related materials solely for your own personal use. Except as expressly provided, all rights are reserved.
You agree not to use the ODG Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do, or attempt to do, any of the following, unless expressly authorized by ODG to do so:
alter or modify the ODG Service, or make any electronic reproduction, adaptation, distribution, performance, or display of the ODG Service, or any portion thereof, except to the extent required for the limited purpose of reviewing material on the ODG Service; sell, rent, lease, transfer, distribute, broadcast, display, provide, or otherwise assign to any third party any rights to the ODG Service, or related materials, other than your authorized use of the features of the ODG Service that you have fully paid for, in accordance with all applicable terms and conditions; remove or modify any proprietary notice or labels on the ODG Service, or related materials, including author attribution and copyright notices, or use any of our trademarks as meta-tags on any other website or application; use the ODG Service for any non-authorized commercial purpose or any illegal purpose, including any comparative or competitive research purposes; copy, modify, erase, or damage any information contained on computer servers used or controlled by ODG or any third party; use the ODG Service to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable; access or use any password-protected, secure, or non-public areas of the ODG Service, or access data on our Service not intended for you, except as specifically authorized in writing by ODG; impersonate or misrepresent your affiliation with any person or entity; use any automated means to access or use the ODG Service, including scripts, bots, scrapers, data miners, or similar software, or display the ODG Service, or portions thereof, in things (e.g., framing, scraping, etc.), without our express written permission; attempt to or actually disrupt, impair, interfere with, alter, or modify the ODG Service, or any information, data, or materials posted and/or displayed by ODG; attempt to probe, scan, or test the vulnerability of the ODG Service or breach any implemented security or authentication measures, regardless of your motives or intent; or undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the ODG Service or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the ODG Service other than as intended; or attempt to interfere with or disrupt access to or use of the ODG Service by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code; or post any content to the ODG Service that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to ODG’s mission; or use the ODG Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations. ODG reserves the right to restrict or terminate your right to use particular features of the ODG Service if ODG determines, in its sole discretion, that your use violates these terms or any other applicable Additional Terms.
9. ODG PROPRIETARY RIGHTS IN CONTENT.
The ODG Service is owned and operated by ODG. As between you and ODG, ODG owns and retains all proprietary rights in the ODG Site and the ODG Service. The hardware, software, content, text, photographs, visual interfaces, interactive features, information, trademarks, logos, graphics, music, design, artwork, compilation, computer code, products, software, services, structure and “look and feel” of this content and all other elements of the ODG Service (“ODG Materials”), is owned, controlled or licensed by or to ODG, and is protected by copyright, trade dress, patent, trademark, unfair competition, and other intellectual property laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All ODG Materials, including intellectual property rights therein and thereto, are the property of ODG or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, reproduce, republish, upload, modify, publicly perform or display, encode, translate, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the ODG Materials, without ODG’s express prior written consent. ODG reserves all rights not expressly granted in this Website User Agreement. You shall not acquire any right, title or interest to the ODG Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Website User Agreement. You acknowledge that ODG will aggressively enforce its intellectual property rights with respect to its ODG Materials to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.
Notwithstanding the foregoing, you may view, download, print, and copy ODG Materials for your own personal, informational use, provided that (i) you do not modify the ODG Materials and (ii) you retain all copyright and propriety notices originally contained in the ODG Materials on any copies.
Any feedback, comments, ideas, improvements or suggestions (collectively, “Suggestions”) provided by you to ODG with respect to the ODG Service shall remain the sole and exclusive property of ODG. ODG shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without credit or compensation to you.
11. USER CONTENT.
ODG may, at our sole discretion, permit Users to post, upload, publish, submit, or transmit photos, diagrams, text, testimonials, reviews, videos, sounds, images, or information (collectively, “User Content”). By making available any User Content on or through the ODG Site, you hereby grant ODG a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, or by means of the ODG Service. ODG does not claim any ownerships rights in any such User Content and nothing in this User Agreement will be deemed to restrict any rights that you may have to use and exploit such User Content. You acknowledge and agree that you are solely responsible for all User Content that you make available through the ODG Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Service or you have all rights, licenses, consents, and releases that are necessary to grant to ODG the rights in such User Content, as contemplated under this Website User Agreement; (ii) neither the User Content nor your posting, uploading, publication, submission, or transmittal of the User Content or ODG’s use of the User Content (or any portion thereof) on, through, or by means of the ODG Service will infringe, misappropriate, or violate a third-party’s patent, copyright, trademark, trade secret, moral rights, or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, and (iii) all User Content complies with the Permitted Uses enumerated above in Section 8 of this Website User Agreement. In addition, you agree to indemnify ODG for any violation of the Website User Agreement in accordance with the Indemnity provisions below.
In addition, you agree that ODG may review or monitor this User Content and may remove or alter any materials that you submit in its sole discretion at any time for any reason.
You agree that ODG may, in its sole discretion and without prior notice, terminate your access to or use of any of the ODG Service at any time and for any reason, with or without cause. You also agree that any violation by you of the Website User Agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to ODG for which monetary damages would be inadequate. You consent to ODG’s obtaining any injunctive or equitable relief that ODG deems necessary or appropriate in such circumstances, without the need for a bond. These remedies are in addition to any other remedies ODG may have at law or in equity.
You may terminate the ODG Service by uninstalling and discontinuing your use of the Services and returning the ODG Products to ODG subject to ODG return policies identified on the ODG website.
ODG reserves the right, in its sole discretion, to add, remove, or modify features of the ODG Service at any time for any reason without liability to you. ODG may change, modify, add, or remove portions of this Website User Agreement (including the Additional Terms) at any time by making such modified terms available to you on the ODG website or through an App, or both. If ODG materially modifies these terms, it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the ODG Service for the first time after such material changes are made. No modifications to this Website User Agreement will apply to any dispute between you and ODG that arose prior to the date of such modification. Your use of the ODG Service after modifications to this Website User Agreement become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this Website User Agreement, then you agree that your sole and exclusive remedy is to discontinue any use of the ODG Service.
ODG PRODUCTS ARE COVERED BY A ONE-YEAR LIMITED WARRANTY ON DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE. Please review our ODG Warranty Agreement on the ODG website for additional information.
YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE ODG SERVICE IS AT YOUR SOLE RISK. THE ODG SERVICE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. ODG DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) THE ODG SERVICE; AND (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE ODG SERVICE, OR ANY PORTION THEREOF, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. ODG MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED THROUGH OUR SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. ODG ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE ODG SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE ODG SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
16. LIMITATION OF LIABILITY.
To the maximum extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event shall ODG or any of its affiliates (including any of its or their partners, officers, employees, agents, contractors, successors, or assignees) be liable to you (including any of your partners, officers, employees, agents, contractors, successors, or assignees) for any indirect, special, incidental, exemplary, punitive, or consequential damages, whether arising in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), including, without limitation, damages arising from delay, loss of goodwill, loss of or damage to data, interruption in use or availability of data, loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connectiON with (a) the ODG Service; or (b) any products and services offered through the ODG Service, or any portion thereof, even if ODG or any of its affiliates or suppliers has been advised of the possibility of such damages. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
if, Despite the foregoing limitation of liability for damages, a court or other tribunal of competent jurisdiction decides to award monetary damages to you for any claim or cause of action arising from the same, the amount of monetary damages for such claim or cause of action shall be no greater than FIVE U.S. dollars ($5.00).
You understand and agree that you are personally responsible for your behavior in connection with the ODG Service AND USE OF the ODG SERVICE. You agree to indemnify, defend, and hold harmless ODG, its parents, subsidiaries, and affiliates, and its and their respective directors, officers, partners, employees, agents, contractors, successors, and assigns from and against all claims, demands, lawsuits, damages, liabilities, losses, costs, or expenses (including, but not limited to, reasonable fees and disbursements of counsel and court costs), judgments, settlements, and penalties of every kind arising from or relating to any violation of this WEBSITE USER agreement and any activity related to your use of the ODG Service.
18. COPYRIGHT INFRINGEMENT
We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners. We may remove material from the Service that appears in our sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer. If you believe a work protected by a U.S. copyright you own has been posted on this Service without authorization, you may notify our copyright agent, and provide the following information: • a physical or electronic signature of the person authorized to act on behalf of the copyright owner; • identification of the copyrighted work or works claimed to have been infringed; • a detailed description of the material you claim is infringing, together with information sufficient to enable us to locate it, including the URL where the infringing material appears; • your name, mailing address, telephone number, and e-mail address; • a statement by you that you believe in good faith belief that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent or the law; and • a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.
To notify ODG of claimed copyright infringement, please contact us at 153 Townsend Street, Suite 570, San Francisco, California 94107, or email@example.com.
19. ACCESS AND USE WHERE PROHIBITED
Access to and use of the ODG Service are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including this Section.
20. INTERNATIONAL USE
ODG makes no representation that the ODG Service or any aspect thereof will be available or appropriate for use in locations outside of the United States. Those who choose to access the ODG Service from locations outside the United States do so at their own risk and are responsible for compliance with local laws and regulations. Users are responsible for compliance with all United States export laws and regulations when exporting any products, services, content, or materials provided through the ODG Service.
21. DISPUTE RESOLUTION; ARBITRATION AGREEMENT.
A. SUBMISSION TO BINDING INDIVIDUAL ARBITRATION. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
B. Arbitration. Any dispute or claim, in law or in equity, arising out of or relating to this Reticle AppCenter Agreement or any relationship between the parties, no matter how described, pleaded or styled, shall be resolved through final, binding arbitration under the substantive and procedural requirements of the Federal Arbitration Act. The arbitration shall be conducted by a single, neutral arbitrator chosen by the parties, and conducted in San Francisco, California. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association, If you're an individual and use the ODG Product or ODG Software or ODG Service for personal or household use, or if the value of the dispute is $75,000 or less whether or not you're an individual or how you use the ODG Product or ODG Softqware or ODG Service, its Supplementary Procedures for Consumer-Related Disputes will also apply, available at www.adr.org. Should either party refuse or neglect to choose an arbitrator or otherwise sincerely and in good faith participate in the arbitration process, then the arbitrator is empowered to proceed with one side alone. The parties agree that the arbitrator, and not a court, shall have exclusive jurisdiction over the interpretation, validity, and scope of this arbitration agreement. Subject to the above terms and subsection C, neither party shall file or maintain any lawsuit in any court against the other, and the parties agree that any suit filed in violation of this Website User Agreement shall be dismissed by the court in favor of an arbitration conducted pursuant to this Website User Agreement. Each party shall bear its own expenses and the parties shall equally share the arbitration filing fee, arbitrator’s compensation, facilities fees, and other administrative fees. However, if the claim or defense of either party is upheld by the arbitrator in all material respects, then the prevailing party shall be promptly reimbursed by the other party for its reasonable attorneys’ fees and disbursements, the reasonable costs of its experts and witnesses, and all other fees, costs and expenses of the arbitration. Any award of the arbitrator shall be in writing and shall state the reasons for the award. Any remedy available from a court under the law shall be available in the arbitration. Judgment upon an award may be entered in any Court having competent jurisdiction. Any judgment therein may be enforced in any court having jurisdiction. The parties, their representatives and participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence, except to the limited extent necessary to enforce a final settlement agreement or to obtain or enforce a judgment on an arbitration decision and award. If any provision of this arbitration agreement is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of the Website User Agreement. If this arbitration agreement is declared unenforceable and cannot be administered, interpreted, or modified to be enforceable, the parties agree any such dispute shall be commenced and maintained exclusively in the state or federal courts in the County of San Francisco and the parties each consent to the personal jurisdiction of said courts. Any dispute or claim shall be brought solely in the party’s individual capacity, and not as a representative, private attorney general or class member in any purported class action, representative proceeding, mass action or consolidated action.
• C. Exceptions. You may also litigate any dispute in small claims court in your county of residence or San Francisco County, California so long as the dispute meets all requirements to be heard in the small claims court and the matter advances on an individual (non-class) basis.
D. WAIVER OF JURY TRIAL. THE PARTIES UNDERSTAND THAT BY ENTERING INTO THIS WEBSITE USER AGREEMENT, BOTH PARTIES ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND, IF APPLICABLE, ANY RIGHTS THEY MAY HAVE TO BRING ANY CLAIMS ON A CLASS, REPRESENTATIVE, CONSOLIDATED OR MASS ACTION BASIS. • E. Immediate Relief. Nothing herein shall prevent either party from seeking immediate injunctive relief pursuant to the Emergency Measures of Protection procedures in the AAA Commercial Rules if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing this dispute resolution process. Such remedy shall be in addition to all other remedies, including money damages, available to such party at law or in equity.
a. Applicable Law, Venue. This Website User Agreement, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents regardless of your country of origin or where you access the Services, and without regard to conflict of law principles or the United Nations Convention for the International Sale of Goods. To the extent that any lawsuit or court proceeding is permitted hereunder, you and ODG agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
b. Entire Agreement. This Website User Agreement (including the various Additional Terms incorporated herein by reference) constitute the entire agreement between you and ODG, and supersedes any and all prior agreements, negotiations, or other communications between you and ODG, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.
c. Severability. In the event that any provision of this Website User Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this Website User Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.
d. Compliance With Laws. You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.
e. Assignment. You may not assign this Website User Agreement without the prior written consent of ODG, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. ODG may assign this Website User Agreement without restriction. Subject to the foregoing, this Website User Agreement shall be binding on the parties and their respective successors and permitted assigns.
f. Force Majeure. You acknowledge and understand that if ODG is unable to provide the Service as a result of a force majeure event ODG will not be in breach of this Website User Agreement. A force majeure event means any event beyond the control of ODG.
g. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Website User Agreement or by law shall not constitute a waiver of that right, power or remedy. ODG’s waiver of any obligation or breach of this Website User Agreement shall not operate as a waiver of any other obligation or subsequent breach of this Website User Agreement.
23. CONTACTING ODG.
The Service hereunder is offered by Osterhout Group, Inc.: 153 Townsend Street, Suite 570, San Francisco, California 94107 (415) 644-4000 firstname.lastname@example.org