In this Agreement, “Octopi” and “we” mean Octopi Commerce LLC doing business as Octopi that is providing the WebOpenings Platform Services to you (the “Purchaser”), and with whom you are entering into this Agreement. The terms “Purchaser” and “you” mean any Purchaser of the Services. This Agreement incorporates Octopi’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Octopi Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services.
EFFECTIVE DATE: JULY 1, 2019
Octopi may update or revise this Agreement from time to time. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account. Except as otherwise expressly stated by Octopi, any use of the Services is subject to the version of this Agreement in effect at the time of use.
Part I – Appointment Booking Services
- Appointment Booking. Octopi makes available appointment booking services (the “Booking Services”) through the Octopi Sites to Purchaser for the purpose of assisting Purchaser in securing an appointment at a Participating Business. Each Participating Business has integrated their computer database of unsold appointment times into Octopi’s WebOpenings Platform. The Participating Business has defined rules for pricing those unsold appointments based on the specific service to be performed and the number of remaining days between the available appointment time and the Purchaser appointment booking time. Once a specific service and an appointment time is purchased by the Purchaser through the WebOpenings Platform, Octopi will process payment using the credit card or debit card as provided by the Purchaser at the time of Purchaser online registration. For the purpose of clarification and the avoidance of any doubt, the Purchaser is not making a reservation – but rather the Purchaser has purchased the selected service and selected appointment time for a fee (the “Booking Fee”.). Any refund is subject to the Appointment Cancellation Policy defined below. Octopi will provide confirmation of the appointment to Purchaser by email or text messages as has been agreed to by Purchaser. Purchaser hereby agrees to receive appointment confirmations, updates, modifications and/or cancellations by email or other electronic messages by using the Services.
- Appointment Cancellation Policy. Octopi is committed to providing superior quality services to Purchasers and the Participating Business. The Site enables you to search for services that are offered by the Participating Business based upon your individual preferences including: your preference of time, location, and particular service performer. The availability of the services depends on the inventory of unsold appointments at the time of your purchase and is subject to change. We make no representation, warranty or promise relating to any availability of any service offered by any Participating Business. In the event that you purchase an appointment on the Site, you may select from one of the available inventory time slots (each an “Appointment Time “) offered on the Site for such service.
In the event that you cancel your Appointment prior to twenty-four (24) hours of the appointment’s start time, the Fee paid shall be refunded to you. In the event you should desire to cancel your purchased appointment within twenty-four (24) hours of the Appointment’s start time, neither the Participating Business nor Octopi shall be obligated to accommodate such request or refund any amounts paid to you. For purposes of clarification and the avoidance of any doubt, in no event shall Octopi have any liability, responsibility or obligation to take any action to modify or cancel any Appointment within twenty-four (24) hours of the Appointment’s start time and you acknowledge and agree that if you fail to cancel your reservation in a timely manner or otherwise in accordance with the cancellation policies set forth in these Terms or identified by the Participating Business you will be responsible to pay the Fee and all other costs identified by the Participating Business as being due and payable to it.
Part II – Payment Services
The following terms and conditions apply when you use the Payment Services made available by Octopi (“Payment Services Terms”).
- General. The Payment Services allow Purchasers to purchase appointments at a Participating Business through the Octopi Sites. In order to use the Payment Services at a Participating Business, you must: (1) make an appointment for the Participating Business through the appointment booking services; (2) provide valid payment method information as further described below; (3) provide and verify your mobile phone number as further described below; and (4) have an Octopi Account in good standing. There is no fee to you to use the Payment Services, but your mobile carrier’s standard text message and data charges may apply; you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and Octopi Sites.
- Mobile Number. In order to use the Payment Services, you must provide a valid mobile phone number through the Octopi Sites and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the Octopi Sites. If you change your mobile phone number, you must promptly provide and verify your new mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Services.
- Receipts. As a courtesy, we will email a receipt to the email address associated with your Account upon completion of a transaction using the Payment Services.
- Limitations. You acknowledge and agree that Octopi provides the Payment Services only as a convenience and is not a party to your payment transactions performed using the Payment Services. Octopi is an independent contractor for all purposes and is not your agent or trustee. Octopi is not responsible, and has no liability for, the products or services that are paid for with the Payment Services. Octopi is not responsible for any overcharges or other payment disputes with a Participating Business. Purchasers must resolve payment and other disputes directly with the Participating Business. Octopi is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Payment Services, you are solely responsible for paying the applicable Participating Business (s) by other means.
Part III – Terms for All Services
- Your Account. You must create an account with Octopi in order to use the Services including the Payment Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Octopi registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Octopi of any unauthorized use of your Account or any other breach of security related to your use of the Services.
- Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications provided by the Services. In order to use the text message based services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access such text message services. Octopi does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers.
- Modifications to Services. Octopi reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Octopi Sites and a Participating Business. Octopi shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
- Octopi Content and Grant of Rights to Purchaser. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Octopi Content”) are provided to Purchaser by Octopi or its partners or licensors solely to support Purchaser’s permitted use of the Services. The Octopi Content may be modified from time to time by Octopi in its sole discretion. Except as expressly set forth herein, no license is granted to Purchaser for any other purpose, and any other use of the Services or the Octopi Content by Purchaser shall constitute a material breach of this Agreement. Octopi and its partners or licensors retain all rights in the Services and Octopi Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Octopi or any third-party is granted under this Agreement.
- Application License. Subject to the terms and conditions of this Agreement, Octopi grants Purchaser a non-exclusive, non-transferable, revocable license to use the Octopi mobile applications, in object code form only, on Purchaser’s compatible mobile devices, solely to support Purchaser’s permitted use of the Services.
- Use Restrictions. The Services and Octopi Content are offered solely for Purchaser’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Octopi expressly reserves all its rights and remedies under applicable laws. Octopi reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel appointments, or deny access to the Services. You agree not to (and not to allow any third-party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Octopi Content, except as expressly authorized by Octopi; (2) take any action that imposes or may impose (in Octopi’s sole determination) an unreasonable or a disproportionately large load on the Services or Octopi’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Octopi Content to a third-party; (5) use any portion of the Services or Octopi Content to provide, or incorporate any portion of the Services or Octopi Content into, any product or service provided to a third-party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law ; (7) modify any Services or Octopi Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Octopi Content; (9) use the Services or Octopi Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Octopi Content or access or use the Services or Octopi Content for competitive analysis or benchmarking purposes. Octopi reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
- Termination. Octopi may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Octopi may suspend your access to the Services if we believe you to be in violation of any part of this Agreement. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that Octopi shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement.
- Purchaser Content. The Services may permit you to submit, transmit, post or otherwise provide content, including, but not limited to, reviews, comments, ratings, photos, images, videos, sounds, text, data, links and location information; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information (“Purchaser Content”). Any such Purchaser Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of a third-party’s publicity or privacy rights, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations. Your Purchaser Content should be unbiased and objective. You may not submit reviews, comments or ratings for which you are being compensated in any manner, or for your own restaurant or any restaurant of your employer, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of Purchaser Content. The name or handle you choose to provide to Octopi may be displayed publicly with such Purchaser Content. Octopi reserves the right (but has no obligation) to monitor, remove, or edit Purchaser Content in Octopi’s sole discretion, including if Purchaser Content violates this Agreement, but you acknowledge that Octopi may not regularly review submitted Purchaser Content. If you do submit Purchaser Content, and unless we indicate otherwise, you grant Octopi a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers, including to participating salons, partners and other third-party websites and feeds) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such Purchaser Content throughout the world in any media, and, where applicable, you hereby waive any privacy or publicity rights or any similar rights in an individual’s name or likeness in addition to any moral or other rights you may have in the Purchaser Content you submit in favor of Octopi. You represent that you own, or have the necessary permissions to use and authorize the use of Purchaser Content as described herein. Octopi takes no responsibility and assumes no liability for any Purchaser Content submitted by you or any other Purchaser or third-party, nor do we guarantee any confidentiality with respect to Purchaser Content.
- Participating Business Content.
- The Content on the Site may include information relating to a Participating Business and their products, services and opportunities, and links to such Business and their online resources. Such Content may include, without limitation, postings by Purchasers in different areas of the Site, data files, written text (e.g., reviews, recommendations, articles, etc.), computer software, music, audio files, video files, web casts photographs or other images. The Content on the Site may also include a variety of information and reviews and opinions on a wide range of topics. Some Content will be provided directly by Octopi or the Participating Business (or agents or representatives working on their behalf). In other instances, Content may be provided by experts who may or may not be compensated by Octopi or affiliated with Octopi in any manner. Octopi does not warrant that product, service or opportunity descriptions, pricing, editorial, opinion or other commentary on services offered by a Participating Business or any other Content, regardless of its source, is accurate, complete, reliable, current, of good quality or error-free. All Content is provided for informational purposes only and does not constitute an endorsement, recommendation, sponsorship or approval of such Content, or any product, service, or opportunity of or provided by a Participating Business or by Octopi Commerce. You should not rely on such information including, without limitation, in situations where its inaccuracy would or could cause you or any other third-party to incur any loss, damage, liability or injury (including, without limitation, personal injury or death).
- The products and services offered by a Participating Business are sold or provided by such Participating Business and not by Octopi, nor is Octopi or the Site acting as agent for such Participating Business in the provision of such Participating Business products and services including, without limitation, with respect to any free product samples you may obtain through the use of the Site. Reviews, ratings and other Content (e.g., video, web casts, etc.) on the Site are from our Purchasers, partners or vendors who have elected to provide such materials on the Site. Octopi disclaims any responsibility for, or liability related to, such products and services (or any information relating thereto), and you agree to address any questions, complaints or claims solely to the appropriate Participating Business of such products or services and not to Octopi. Links to other Internet sites operated by a Participating Business, including service providers featured on Octopi, do not constitute sponsorship, endorsement or approval by Octopi of the content, policies or practices of such linked sites.
- Octopi expressly disclaims any and liability for the accessing of any data or communications or other Content on the Site by unauthorized persons and entities.
- Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any Purchaser Content submitted by you; that all Purchaser Content submitted by you is accurate; and that exploitation of such Purchaser Content by Octopi and its other Purchasers, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Octopi’s request) defend Octopi, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Octopi Parties”) from and against all claims resulting from (1) any Purchaser Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
- Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE OCTOPI PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE OCTOPI SITES, SERVICES, THE OCTOPI CONTENT, OR THE PURCHASER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY PARTICIPATING BUSINESS OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY PARTICIPATING BUSINESS IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD-PARTY DIRECTING YOU TO THE OCTOPI SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO PURCHASER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE OCTOPI CONTENT. OCTOPI IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY PARTICIPATING BUSINESS FOR WHICH A PURCHASER HAS MADE AN APPOINTMENT, CLAIMED AN OFFER OR PROMOTION, OR PAID A BILL USING THE PAYMENT SERVICES.
- IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR AY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
- You and Octopi understand and agree that the disclaimers, exclusions, and limitations in Section(s) 15,16, 17 and 18 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Octopi would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND OCTOPI CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL OCTOPI CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO PURCHASER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. OCTOPI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. OCTOPI DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT OCTOPI WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. OCTOPI SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOPI.
- THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than Octopi. Such hypertext links are provided for Purchaser’s reference only, and Octopi does not control such websites and is not responsible for their content. Octopi’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. Octopi assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, or Microsoft Windows mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service, including any license transferability and other usage rules therein.
- Release. A Participating Business is solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your interaction with or visit to any Participating Business or from any promotion, offer, product or service of any Participating Business. Purchasers must resolve all disputes directly with a Participating Business. To the maximum extent permitted by applicable law, you hereby release the Octopi parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Octopi parties pertaining to the subject matter of this Section 21.
- Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section. In order for us to take action, you must do the following in your notice: (a) provide your physical or electronic signature; (b) identify the copyrighted work that you believe is being infringed; (c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it; (d) provide us with a way to contact you, such as your address, telephone number, or email; (e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and (f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
P.O. Box 14747 N. Northsight Blvd.
Scottsdale, AZ 85253
- Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
- Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by Purchaser, but may be freely transferred, assigned, or delegated by Octopi.
- Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
- ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
- If you are a resident of the United States (including its possessions and territories) or Canada, you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Octopi or our successors or assigns shall exclusively be settled through binding and confidential arbitration.
- Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
- In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- In the case of arbitration and where permitted by law, you and Octopi must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR OOCTOPI MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Octopi will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Octopi also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
- Notwithstanding the foregoing, either you or Octopi may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Maricopa County, Arizona. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Maricopa County, Arizona in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Maricopa County, Arizona for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of Octopi Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Octopi shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Maricopa County, Arizona.
- For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Arizona, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.