OhmniLabs, Inc. (“OhmniLabs”) provides: (i) an OhmniLabs user account website that may be accessed at https://app.ohmnilabs.com (“Site”), (ii) services accessible through the Site (“Web App”), and (iii) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), all for use in conjunction with OhmniLabs hardware products (“Products”) and in other ways that OhmniLabs provides. Some Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Site, Web App, and Mobile Apps (if applicable). These Terms of Service apply to all users of the Service (collectively or individually, “Users”).
BEFORE VIEWING, BROWSING OR OTHERWISE USING THE SERVICE, PLEASE READ THESE TERMS OF SERVICE CAREFULLY. By VIEWING, BROWSING, CHECKING A BOX OR CLICKING A BUTTON CONFIRMING YOUR AGREEMENT TO THESE TERMS OF SERVICE OR OTHERWISE USING THE SERVICE, you: (A) acknowledge that you have read, understood, and agree to be bound by THESE TERMS OF SERVICE ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT; AND (b) WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH USE OF THE SERVICE. If you do not agree to ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, THEN please disconnect your product from your account and do not VIEW, BROWSE or otherwise use the SERVICE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICE AND OF THE PRODUCTS CONNECTED TO THE SERVICE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICE.
AS DESCRIBED BELOW, SECTION 7 DESCRIBES IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
IF YOU ARE A REMOTE USER (AS DEFINED IN SECTION 5.1), YOU AGREE TO BE BOUND BY ALL PROVISIONS IN THESE TERMS OF SERVICE THAT MAY APPLY TO YOU, INCLUDING, WITHOUT LIMITATION, SECTION 7.4.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF SERVICE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES EXCEPT WHERE PROHIBITED BY LAW, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
2. Terms of Sale. Any Product purchases made via the Site will be governed by our Terms of Sale, found at ohmnilabs.com, which is hereby incorporated into these Terms of Service. Please read the Terms of Sale carefully for further terms and conditions regarding the Products and the Service.
3. Individual Features and Services. When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms of Service.
4. Modification. We reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms of Service at any time. Such changes will be effective as of the date posted to the Service, and your continued use of the Service will constitute acceptance of such changes.
5. Access to Services.
5.1. Subject to these Terms of Service, we grant you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Service by in connection with, and solely for the purpose of (i) using the Web App in connection with, and solely for the purpose of, controlling and monitoring the Products on your property or otherwise accessing a service explicitly provided by OhmniLabs for your use (the “Permitted Purpose”), (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, Android smartphone, Android tablet) and solely for the Permitted Purpose (if applicable); and (iii) granting other Service users (“Remote Users”) permission to remotely control your Products for the Permitted Purpose via the Service, subject to these Terms of Service.
5.2. We may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service and/or the software embedded in the Products (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to these automatic updates. If you do not want such Updates, your remedy is to terminate your account and stop using the Service and the Products. If you do not terminate a previously created account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Service and the Products and you agree to promptly install any Updates OhmniLabs provides.
6. Ownership; Proprietary Rights.
6.1. The Service is owned and operated by OhmniLabs. The content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service and any software (“OhmniLabs Software”) provided by OhmniLabs (“OhmniLabs Materials”) are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All OhmniLabs Materials are the copyrighted property of OhmniLabs or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to OhmniLabs or its affiliates and/or third-party licensors. Except as expressly authorized by OhmniLabs in writing, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the OhmniLabs Materials. You are not required to provide any ideas, feedback or suggestions regarding the Service or any of the OhmniLabs’s products or services (collectively, “Feedback”) to OhmniLabs. To the extent you do provide any Feedback to OhmniLabs, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to OhmniLabs and acknowledge that OhmniLabs may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
7. Agreed Usage and Limitations Of The Service.
7.1. The Service is intended to be accessed and used for non-time-critical information and control of Products. While we aim for the Service to be highly reliable and available, it is not intended to be reliable or available 100% of the time. The Service is subject to sporadic interruptions and failures for a variety of reasons beyond our control, including wi-fi intermittency and service provider uptime, among others. You acknowledge these limitations and agree that we are not responsible for any damages allegedly caused by the failure or delay of the Service.
7.2. You acknowledge and agree that the Products and Service, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. We make no warranty or representation that use of the Products or Service with any third-party product or service will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICE, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — WE WILL NOT DISPATCH EMERGENCY AUTHORITIES TO THE LOCATION IN THE EVENT OF AN EMERGENCY. In addition, our support contacts cannot be considered a lifesaving solution for people at risk in the Location, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
7.3. You acknowledge that: (i) the Service, including remote access and notifications, are not intended to be 100% reliable and 100% available; (ii) Remote Users may not be able to access or control Products via the Service at any given time; and (iii) you may not be able to communicate with or otherwise interact with Remote Users via the Service at any given time. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
7.4. You acknowledge and agree that you are solely responsible for determining the qualifications and background of any Remote Users you allow to access your Products via the Service. Any liability or harm, including property damage or loss, personal injuries or death, arising from the acts or omissions of Remote Users is solely the responsibility of you and the applicable Remote Users. OhmniLabs shall have no liability in relation to the acts or omissions of such Remote Users, except to the extent such liability arises from the gross negligence or willful misconduct of OhmniLabs. OhmniLabs hereby disclaims and you hereby discharge, waive and release OhmniLabs and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such Remote Users.
7.6. OhmniLabs may provide the opportunity for you to interface the Products and Services with Third Party Products and Services. These could include, but are not limited to, computers, web browsers, auxiliary cameras, and others. You acknowledge that Third Party Products and Services that you connect to your account or interface with are not OhmniLabs products and services and you acknowledge and agree that OhmniLabs does not control, and that these Terms of Service do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that OhmniLabs makes no representation or warranty about the safety of any Third Party Products or Services. Accordingly, OhmniLabs is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to the Location), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
7.7. The Service provides you information (“Product Information”) regarding the Products in the Location and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Service is not a substitute for direct access of the information at the Location.
7.8. You acknowledge and agree that the availability of the Mobile Apps (if applicable) is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms of Service are between you and OhmniLabs and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
7.9. In the event you are using the Services in connection with a device provided by Apple or a OhmniLabs application obtained through the Apple App Store (collectively, such uses are henceforth the “Application”), the following shall apply:
7.9.1 You will only use the Application in connection with an Apple device that you own or control;
7.9.2. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
7.9.3. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
7.9.4. You acknowledge and agree that OhmniLabs, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
7.9.5. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, OhmniLabs, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
7.9.6. You represent and warrant that you are not located in a country subject to a U.S. Government or Canadian Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country or a similar designation in Canada, and that you are not listed on any U.S. Government or Canadian Government list of prohibited or restricted parties;
7.9.7. You acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
7.9.8. You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
7.10. The Site may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. OhmniLabs provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.
7.11. OhmniLabs is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. OhmniLabs hereby disclaims and you hereby discharge, waive and release OhmniLabs and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services, even if you are unaware of a claim that might exist at the time of agreeing to this release. THIS IS AN EXPLICIT WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542, and YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
8. Prohibited Uses.
8.1. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these Terms of Service. The foregoing restriction applies, without limitation, to Remote Users, who are forbidden from using the Service to direct the Product in a way that is unlawful or prohibited by these Terms of Service. Access to the OhmniLabs Materials and the Service from territories where their contents are illegal is strictly prohibited. Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the Internet, technology, data, email, or privacy.
8.2. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the Service. You may not intentionally interfere with or damage the operation of the Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service or OhmniLabs Software. You may not attempt to gain unauthorized access to the Service or OhmniLabs Software, or any part thereof, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service, OhmniLabs Software or any activities conducted on the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service or OhmniLabs Software in any manner or form, nor to use modified versions of the Service or OhmniLabs Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service, Products or OhmniLabs Software.
8.3. The Service may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
9. Account Information. You agree that the information you provide to OhmniLabs upon registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
10. Password. When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify OhmniLabs. You may be liable for the losses incurred by OhmniLabs or others due to any unauthorized use of your account.
11. User Communications. Under these Terms of Service, you consent to receive communications from OhmniLabs electronically. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
12. Availability of Service. OhmniLabs may make changes to or discontinue any of the features and functionality available within the Service at any time, and without notice.
13. Notice. Notices to the OhmniLabs must be sent to OhmniLabs, Inc. at 3140 De La Cruz Blvd Ste 150 Santa Clara CA 95054. Such notices must be sent via internationally recognized overnight courier and are deemed given when received. Notices to you may be sent to the email address associated with your account, and are deemed given when sent.
14. Violations; Termination. You agree that OhmniLabs, in its sole discretion and for any or no reason, may terminate your Service account or your use of the Service, and remove and discard all or any part of your account at any time. OhmniLabs may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that OhmniLabs shall not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies OhmniLabs may have at law or in equity.
15. Disclaimers; No Warranties. We are not responsible for third parties or their products and services. We hereby disclaim and you hereby discharge, waive and release us and our licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.
THE SERVICE AND ANY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OHMNILABS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
OHMNILABS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, WILL BE COMPATIBLE WITH YOU’RE THE LOCATION’S NETWORK OR COMPUTER, OR THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT TRANSMISSIONS OF DATA OVER THE INTERNET ARE INHERENTLY SUSCEPTIBLE TO INTERCEPTION AND ERRORS AND AGREE THAT ANY SUCH INTERCEPTION OR ERRORS IN THE TRANSMISSION OF DATA FROM YOU OR YOUR PRODUCT TO US, INCLUDING, WITHOUT LIMITATION, THE USAGE DATA, AND ANY LIABILITY ARISING THEREFROM, ARE NOT THE RESPONSIBILITY OF OHMNILABS.
WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY THE OHMNILABS YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
OHMNILABS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
16. Indemnification; Hold Harmless. You agree to indemnify and hold OhmniLabs and its affiliated companies, and each of their directors, officers, employees, contractors, suppliers and partners, harmless from any claims, losses, damages, liabilities, costs and expenses, including attorney’s fees, arising out of or relating to your use or misuse of the Service or OhmniLabs Materials, transmission of data, including without limitation the Usage Data, from you or your Product to OhmniLabs’s systems, breach of these Terms of Service or violation of the rights of any other person or entity, except solely to the extent any of the foregoing arise out of the willful misconduct or gross negligence of the OhmniLabs. OhmniLabs reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the OhmniLabs and you agree to cooperate with OhmniLabs’s defense of these claims.
17. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL OHMNILABS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF, RELATE TO OR RESULT FROM YOUR USE OR THE INABILITY TO USE THE OHMNILABS MATERIALS, THE SERVICE ITSELF, REMOTE USERS, THE USAGE DATA, OR ANY OTHER INTERACTIONS WITH OHMNILABS, EVEN IF OHMNILABS OR AN OHMNILABS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OHMNILABS’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL OHMNILABS’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD- PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE COST OF THE APPLICABLE PRODUCT(S) AND/OR AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICE.
THE PARTIES STIPULATE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES AND THAT WITHOUT SUCH EXCLUSIONS AND LIMITATIONS THE OHMNILABS WOULD NOT MAKE AVAILABLE THE SERVICE WITHOUT CHARGE.
18.1. This Section 18 is referred to herein as the “Dispute Resolution Agreement.” If any dispute arises out of or related to these Terms (“Dispute”), the parties shall first to try in good faith to settle the dispute by non-binding mediation in the County of San Francisco, California via written notice by one party to the other. Within 10 days of such request, the parties shall confer to select a mediator. If the parties fail to agree upon a mediator, either party may request that the Judicial Arbitration and Mediation Services (“JAMS”) appoint a mediator. The parties agree that all Disputes which are not resolved by mediation shall be subject to binding arbitration pursuant to the terms and conditions of this Dispute Resolution Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Agreement. Either party may initiate arbitration with respect to the Dispute by filing a written demand for arbitration at any time following 45 days from the date of filing the written request for mediation. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against OhmniLabs.
18.2. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S) (“Class Action Waiver”).
18.3. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Dispute Resolution Agreement. If there is any inconsistency between the AAA Rules and this Dispute Resolution Agreement, the terms of this Dispute Resolution Agreement will control unless the arbitrator determines that the application of the inconsistent Dispute Resolution Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would, including without limitation, the limitation of liability provisions in Section 17. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or OhmniLabs may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise. The arbitrator shall not be bound by rulings in prior arbitrations involving different OhmniLabs customers, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
18.4. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties. If a court decides that any term or provision of this Dispute Resolution Agreement other than the Class Action Waiver is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Dispute Resolution Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Class Action Waiver is invalid or unenforceable, then the entirety of this Dispute Resolution Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.
18.5. Notwithstanding the foregoing, OhmniLabs may seek injunctive or other equitable relief to protect its rights under these Terms in any court of competent jurisdiction.
19. Claims. YOU AND OHMNILABS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
20.1. Governing Law; Jurisdiction.
20.1.1 These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to these Terms of Service or the Service that is not subject to mandatory arbitration as set forth above in Section 18 shall be filed only in the state or federal courts in and for San Francisco, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
20.1.2. Notwithstanding anything to the contrary, OhmniLabs may apply to any court of competent jurisdiction for injunctive or other equitable relief.
20.2. Waiver. A provision of these Terms of Service may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms of Service shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms of Service shall not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms of Service.
20.3. Severability. If any provision of these Terms of Service shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
20.4. Assignment. These Terms of Service and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OhmniLabs without restriction.
20.5. Survival. Sections 2, 6 and 13 through and including 20 will survive any termination of these Terms of Service.
20.6. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and shall not be deemed to limit or affect any of the provisions hereof.
21. Entire Agreement. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to these Terms of Service or Guidelines made by OhmniLabs as set forth in Section 3 above.
22. Disclosures. The services hereunder are offered by OhmniLabs, Inc. located 3140 De La Cruz Blvd Ste 150 Santa Clara CA 95054, email: email@example.com.
Last updated: April 4, 2019