Terms of Service
Last Updated: September 29, 2023
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
EXCEPT AS OTHERWISE SPECIFIED IN THESE TERMS, THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND ONTRA RELATING TO THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE MAY BE LIMITED. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. ADDITIONALLY, YOU ARE HEREBY WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PLEASE REVIEW SECTION 12 OF THESE TERMS FOR DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTE WITH ONTRA.
Age Requirement. You must be at least 18 years old to access or use the Services. If you are under 18 years old, you are not permitted to use or access the Services. By accessing or using the Services you represent and warrant that you are an individual of legal age to form a binding contract. We do not knowingly collect or solicit personally identifiable information from children under 18 years of age; if you are a child under 18 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information.
Customer Authorized User Requirement. Access to the Platform Services may only be granted by a customer of Ontra (each, a “Customer”) who has a written agreement with Ontra (a “Customer Agreement”). References to a “Customer Authorized User” in these Terms means an individual who has been authorized to access and use the Platform Services by a Customer in connection with a Customer Agreement. If you are a Customer Authorized User, your access to and use of the Platform Services is governed by and subject to the terms of the Customer Agreement in addition to these Terms. References to a “User” in these terms means an individual who is an eligible user of any of the Services, including any Customer Authorized User.
Subject to your continued compliance with these Terms and, with respect to Platform Services, Customer’s compliance with the relevant Customer Agreement, Ontra grants to you a non-exclusive, non-sublicensable, revocable, non-transferable right to (i) access and use the Site for your internal, personal use only and (ii) to the extent you are a Customer Authorized User, access and use the Platform Services, and the relevant manuals, handbooks, reports, guides, and end-user software documentation relating to the Platform Services provided by Ontra to you either electronically or in hard copy form relating to the Platform Services (the “Documentation”) solely for your use of the Platform Services in connection with the Customer Agreement, and in each case, for no other purpose whatsoever, including any competitive purposes or on behalf of or for the benefit of any third party. Ontra reserves all rights not expressly granted to you in these Terms.
Creating a User Account. As a Customer Authorized User, you will be assigned a unique user account (a “User Account”) and accompanying account credentials (the “User Credentials”) to use or access the Platform Services. If you are assigned a User Account, you may be required to provide us with certain information, such as your contact information, and you must provide truthful, accurate, and complete information about yourself in connection with the creation of your User Account. You agree to update information related to your User Account if it changes at any time during your use of the Platform Services. Your User Account will allow you to access and use the Platform Services, including to display, list, remove, modify, or edit certain data related to certain End User Data and/or corporate information in accordance with the relevant Documentation.
Securing Your User Credentials and User Account. As a Customer Authorized User, you may not share your User Credentials or permit any other person to access the Platform or the Services through your User Account. You understand that you are responsible for maintaining the security of your User Credentials and User Account, and for any activity associated with your User Account, including any losses or liability incurred if you fail to protect the security of your User Credentials or User Account. As a result, you agree to take reasonable measures to secure your User Credentials and to prevent unauthorized access to your User Account. If you become aware of or suspect the unauthorized access to or use of your User Credentials or access to or use of your User Account, please update your User Credentials and contact supp[email protected] immediately. We are not liable for any harm related to any authorized or unauthorized access to or use of your User Credentials.
End User Property. For Customer Authorized Users making use of the Platform Services, the ownership of all data, documents, information or materials (collectively, “End User Data”) that you upload in your capacity as a Customer Authorized Users and Ontra’s use of such End User Data will be subject to the terms of the relevant Customer Agreement, pursuant to which you have been granted access to the Platform Services. With respect to all other Users, as between you and Ontra, you own all End User Data that you upload in connection with the Services. However, you understand that Ontra has the right (but not the obligation), in our sole and absolute discretion, and you hereby grant Ontra a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license, to use, edit, display, modify, aggregate, reproduce, distribute, redact, remove, re-categorize to a more appropriate location, or otherwise change any End User Data as we deem necessary to provide the Services or otherwise in accordance with the Terms and any other agreements with you and/or your partners, members, participants, investors and affiliates to which such End User Data relates. You represent, warrant and covenant that you have provided all notices, and obtained all authorizations, consents, permissions, and rights, as necessary, including as required under Applicable Laws (as defined below), to grant such license to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. Ontra is not responsible for any End User Data posted by any other person and will have no liability to you for any such End User Data. You are solely responsible for the accuracy, quality and legality of the End User Data and you represent that all End User Data is accurate, complete, up-to-date and in compliance with all Applicable Laws. You agree that you will not post, upload, share, store or otherwise provide through the Services any End User Data that infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.) or that violates any Applicable Laws.
Ontra Property. As between the parties, except as otherwise specified in a Customer Agreement, Ontra and its licensors owns all intellectual property rights or other right, title, or interest in or to the Services, including, but not limited to: (i) the Site and all content included on the Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials displayed or performed or available on or through the Site (together, “Site Content”), (ii) all contents, including images, illustrations, designs, icons, photographs, video clips and written and other materials displayed or performed or available on or through a Third-Party Product (as defined below) (together, “Third-Party Hosted Content”), (iii) the Platforms, the software component of the Platform Services, and all Documentation, (iv) any Feedback (as defined below), (v) all Aggregated Data (as defined below), and (vi) any and all proprietary technology, algorithms, code, scripts, routines, user interface designs, architecture, class libraries, network designs, know-how, trade secrets, proprietary technology, feature or product names, logos, trademarks, service marks, and trade names (other than those provided by our Customers, the “Ontra Marks”) or other intellectual property in connection with the foregoing (collectively, the “Ontra Property”). Except as expressly provided in these Terms or a Customer Agreement, none of the Ontra Property may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted, or distributed in any way and nothing on this Site or Platforms may be construed to confer any license to any Ontra Property. Any rights not expressly granted herein are reserved by Ontra and you agree that you will not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in these Terms or a Customer Agreement), create derivative works based on, or otherwise exploit any Ontra Property. You hereby represent, warrant and covenant that you will abide by all copyright notices, trademark rules, information, and restrictions contained in any Ontra Property you access through the Services, and that you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Ontra Property, (i) without the prior consent of Ontra or the owner thereof or (ii) in a way that violates someone else’s (including Ontra’s) rights.
Downloadable Content. Certain Site Content is available to be downloaded by Users (the “Downloadable Content”). Ontra hereby grants you permission to download, view, copy and print the Downloadable Content. You understand and acknowledge that the Downloadable Content does not constitute legal, financial, investment, tax, accounting, regulatory, compliance, or other similar professional advice and should not be used for any other purpose but your personal, informational, and non-commercial use. The Downloadable Content may not be modified or altered in any way, including the removal or alteration of any copyright and trademark notice. Any unauthorized use of any Downloadable Materials contained on the Site or Platforms may constitute a violation of copyright laws, trademark laws, laws of privacy and publicity, and communications regulations and statutes.
Feedback. You may from time to time provide suggestions, comments, questions, recommendations or other feedback with respect to the Services, including, without limitation, new features or functionality related thereto (“Feedback”). You hereby irrevocably assign to Ontra, all right, title, and interest in and to the Feedback. Ontra will be the owner of all Feedback and will be free to use, but have no obligation to use, without any attribution or compensation to you, all Feedback and any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
Third-Party Property and Products. All (i) trademarks, product names, and company names or logos other than the Ontra Marks that are cited or displayed on or through the Services and (ii) data, materials, documents or other content posted by another User or any Customer belongs exclusively to that User or Customer (collectively, the “Third-Party Property”), are the property of their respective owners. Nothing in these Terms confer any rights in or licenses to Third-Party Property. Additionally, the Services may contain features or Third-Party Hosted Content that are integrated with software, web browser plug-ins, and/or applications that are provided by a third-party, or hyperlinks to third-party websites or made available or accessible to you via a third party’s platform (collectively, the “Third-Party Products”). You understand that all Third-Party Products are subject to their own terms and conditions with the provider of that Third-Party Product, and that Ontra has no control over, assumes no responsible for and makes no warranty of any kind with respect to any Third-Party Products or the content, accuracy, privacy policies or practices of or opinions expressed by any Third-Party Property owners, including those that you may interact with through the Services. Additionally, Ontra does not monitor, censor or edit the content of any Third-Party Property or Third-Party Products, or provide any maintenance or support services for the Third-Party Products. Ontra is not responsible for any license, exchange of data, interaction, service, information gathered from, or the use of, any of Third-Party Products. When you access the Third-Party Property and/or the Third-Party Products, you accept that there are risks in doing so, and release and hold us harmless from any and all liability arising from your use thereof.
Restricted End-User Content. You are legally and ethically responsible for any End User Data, including, but not limited to any writings, files, photos, reviews, documents, pictures, or any other materials, that you post or transmit on or through any Service that allows the interaction or dissemination of information. When accessing the Services, you agree not to upload, display, perform, transmit or otherwise distribute any End User Data that: (i) is known by you to be false, inaccurate, or misleading; (ii) infringes anyone’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (iii) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or foreign law or regulation, including any export laws or regulations; (iv) is, or may reasonably be considered to be, defamatory, libelous, hateful, abusive, obscene, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing, or advocates or encourages illegal conduct harmful to any individual, partnership or corporation; (v) includes advertisements, spam, or content for which you were compensated or granted any consideration by any third party; (vi) except to the extent required to receive the Platform Services in connection with a Customer Agreement, includes information that references third party websites or addresses, email addresses, phone numbers, or other contact information of subjects without having obtained valid rights from such subjects to use and distribute such information; (vii) contains any computer virus, worms, or other potentially damaging computer programs or files; or (viii) that otherwise violates these Terms.
Compliance with Law. You acknowledge and agree that your access to and use of the Services may be subject to applicable laws, ordinances, rules and regulations, including without limitation, the rules and regulations of foreign, federal, state and/or local agencies (“Applicable Law”). You represent that your use of the Services, including as a Customer Authorized User, is not prohibited by Applicable Laws. Ontra is not responsible for your use of the Services in the event that your use violates any Applicable Law. You agree to comply with all Applicable Laws related to your use, transmission and disclosure of any data or information, including your End User Data, in connection with the Services, and that you will be responsible in the event you have violated Applicable Law in connection with your use of the Services.
Aggregate Data. You understand and agree that Ontra may monitor, collect, and compile data and information related to or derived from your use of the Services, including any End User Data you post or upload, in each case, in an aggregate and anonymized manner (the “Aggregated Data”). All right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Ontra. Ontra may use or disclose Aggregated Data (i) to its affiliates; (ii) in compliance with Applicable Law, including without limitation to improve and enhance the Services; and (iii) for other development, diagnostic, and corrective purposes in connection with the Services and other offerings by Ontra, including without limitation training, enhancing, or supplementing artificial intelligence or machine learning models, platforms, or algorithms; however, in no event will any Aggregate Data identify you or any other person identified in your End User Data or be identifiable as having originated from you.
Term. These Terms begin on the date you first use the Services and continue as long as you have an User Account with Ontra and/or continue to use the Services.
Suspension or Termination for Violation of these Terms. Ontra reserves the right to take down any End User Data or suspend or terminate your access to the Services at any time if it determines in its sole discretion that you have violated these Terms or that your use or access to the Services is causing or may cause immediate, material or ongoing harm to Ontra, the Site, the Platforms, the Services, another User or Customer, or any of our or our affiliates’ vendors, including without limitation our subprocessors.
Service Suspension. In addition to the foregoing rights, you understand that from time to time, your access and use of the Services may be temporarily unavailable, impaired, or suspended by Ontra due to any of the following: (i) scheduled maintenance, (ii) unscheduled emergency maintenance, (iii) your use of the Services (A) in violation of these Terms or (B) that causes, or may cause, immediate, material or ongoing harm to Ontra, the Site, the Platforms, the Services, another User or Customer, or any of Ontra or its affiliates’ respective vendors; (iv) one or more third party vendors suspending or terminating Ontra’s access to or use of its products or services that are required to enable you to access or use the Services; or (vi) as a result of any governing legal or regulatory decree, guidance or opinion, a force majeure event, or any other event beyond the reasonable control of Ontra. Ontra will endeavor to provide you with advanced notice of any suspension to the extent practicable. Except as otherwise specified in a Customer Agreement, Ontra will have no liability to you for a suspension of the Services.
Termination of the Platform Services. As a Customer Authorized User, you may delete your User Account at any time by contacting [email protected], at which time you will lose the ability to access or use the Platform and the license(s) granted to you as a Customer Authorized User pursuant to these Terms and/or a Customer Agreement will terminate. Account termination may result in destruction of any End User Data associated with your User Account. Because your access to and use of the Platform Services is subject to the Customer Agreement, you understand that the Customer may suspend or terminate your User Account at its discretion or that we may suspend or terminate your User Account pursuant to the Customer Agreement without prior notice to you. Upon termination of your access to the Platform Services you must immediately cease all access to and use of the Platform Services.
Your Confidentiality Obligations. You understand and acknowledge that through your use of or access to the Services, you may have access to or receive certain nonpublic information regarding Ontra’s business, products and services or regarding other Users. You agree that you will not use or disclose any information you receive through the Services to any person except as required for your use of the Services, and that you will exercise a reasonable degree of care to maintain the confidentiality of that information. You understand that other Users with appropriate access rights may have access to your End User Data in connection with the Services. Ontra is not responsible to the extent any End User Data provided by you is subject to any confidentiality obligation to another person or entity.
You will indemnify and hold harmless Ontra, its affiliates, and its and its affiliates’ respective directors, managers, officers, employees, agents, successors and assigns from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) incurred by Ontra in connection with any action, claim or proceeding brought by a third party (excluding subcontractors and agents of Ontra) arising out of or in relation to (a) in the case of Customer Authorized Users making use of the Platform Services, unless otherwise specified in the relevant Customer Agreement, your use of, posting, or other transmission of your End User Data in connection with the Platform Services, your use of the Platform Services in violation of Section 2 or 5 these Terms and (b) in the case of all other Users, your use of the Services, including your use of, posting or other transmission of your End User Data, or your violation of these Terms.
The transmission of data in connection with the use of the Services is subject to the potential for errors, omissions, delays and losses that may give rise to loss or damage to your End User Data (a “Data Event”). You understand these risks are inherent to the Services, and that you are responsible for adopting reasonable measures to limit the impact of a Data Event. If you experience a Data Event, please notify Ontra immediately at [email protected]. Ontra will use its commercially reasonable efforts to promptly remedy any nonconformity or defect in the Services that resulted in a Data Event upon discovering it. Ontra will not be responsible to address or remedy any Data Event to the extent, (a) you fail to promptly notify Ontra of such Data Event, (b) the Data Event was caused by software or other equipment that was not provided by Ontra, or (c) the Data Event arises from your breach of these Terms. You understand and agree that, except as otherwise specified in a Customer Agreement, the remedies described in the foregoing paragraph will be your sole remedy for any Data Event and that Ontra will have no further liability to you in connection with such Data Event.
EXCEPT AS EXPLICITLY PROVIDED IN THESE TERMS OR A CUSTOMER AGREEMENT, THE SERVICES AND THE ONTRA PROPERTY ARE PROVIDED TO YOU “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ONTRA AND ITS AFFILIATES, LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ONTRA AND ALL SUCH PARTIES TOGETHER, THE “ONTRA PARTIES”) HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE ONTRA PARTIES MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES AND THE ONTRA PROPERTY, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE ONTRA PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY ONTRA PROPERTY, OR ANY CLAIMS, ACTIONS, SUITS, PROCEDURES, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF, OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN, THE SERVICES. THE ONTRA PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU BUT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EXCEPT AS OTHERWISE SPECIFIED IN A CUSTOMER AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT WILL ONTRA OR THE ONTRA PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, REVENUES, OR PROFITS, LOSS OF GOODWILL OR REPUTATION, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, COST OF REPLACEMENT GOODS OR SERVICES, OR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA) ARISING FROM OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN EACH CASE, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ONTRA’S OR THE ONTRA PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES EXCEED $100. NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS SHALL NOT LIMIT ANY LIABILITY OF ONTRA FOR FRAUD OR WILLFUL MISCONDUCT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ONTRA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ONTRA.
Summary. Most of your concerns can be resolved quickly and to your satisfaction by contacting us at [email protected]. In the unlikely event that we are unable to resolve your complaint to your satisfaction (or if Ontra has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes that you bring in your capacity as a User and/or in relation to these Terms through binding arbitration rather than in a court of general jurisdiction. For the avoidance of doubt, any dispute you may have in your capacity as a Customer Authorized User or on behalf of the Customer that authorized your use of the Platform Services shall be handled by Ontra and the Customer pursuant to the dispute resolution procedures set forth in the Customer Agreement. Arbitration procedures are typically more limited, more efficient, less costly and less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. In any litigation between you and Ontra over whether to vacate or enforce an arbitration award, YOU AND ONTRA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
Exceptions. As limited exceptions to the Section entitled “Summary” above, and subject to the Section entitled “Exclusive Venue” below, nothing in these Terms will be deemed to waive, preclude, or otherwise limit either party’s right to: (a) bring an individual action in small claims court in the New York County, New York or any United States county where you live or work; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive or other equitable relief in a court of law and competent jurisdiction; or (d) file suit in a court of general jurisdiction to address an intellectual property infringement claim.
Arbitration Agreement. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof. Ontra and you agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding, before a single arbitrator in the County of New York in the State of New York, the United States of America. You also acknowledge and agree that Ontra’s officers, directors, managers, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, all Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof. Any arbitration between you and Ontra will proceed in the English language and be governed by the JAMS Streamlined Arbitration Rules and Procedures then in effect (collectively, “JAMS Rules”) by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. You understand and agree that, except as expressly provided otherwise herein, the arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. YOU AGREE THAT, BY AGREEING TO THESE TERMS, YOU AND ONTRA ARE EACH WAIVING ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY OR IN FRONT OF A JUDGE OR TO PARTICIPATE IN A CLASS ACTION. This Section 12 will survive termination of these Terms.
Notice. If you or Ontra intends to seek arbitration, the party seeking to initiate the arbitration proceeding must first send, by U.S. certified mail, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), a written Notice of Dispute (“Notice”) to the other party. A Notice to Ontra should be sent via U.S. mail or other nationally recognized overnight courier addressed to Notice of Dispute, InCloud, LLC, 2041 East Street PMB39, Concord, CA 94520, Attn: General Counsel with a copy of the Notice submitted via email to [email protected] (the “Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). Upon receipt of a Notice, Ontra and you will attempt in good faith to resolve the dispute described in the Notice. If Ontra and you do not reach an agreement to resolve the dispute within 30 days after the Notice is received, you or Ontra may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Ontra or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Ontra is entitled.
Arbitration Costs. The JAMS Rules will govern payment of all arbitration fees. The prevailing party in any arbitration action or proceeding will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party that is determined by the arbitrator(s) to have prevailed on the major disputed issues. Notwithstanding the foregoing, if the value of your claim is less than ten thousand ($10,000) dollars, and the arbitrator, upon final disposition of the case, finds the substance of your claim and/or the relief sought was not frivolous or initiated for an improper purpose, Ontra will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration.
Class Action Waiver. YOU AND ONTRA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this provision is found to be unenforceable, then all of the preceding language in this Section 12 will be null and void.
Exclusive Venue. In any circumstances where the foregoing arbitration agreement permits either you or Ontra to litigate any dispute, claim or controversy arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and the parties agree that the exclusive jurisdiction and venue of any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services will be in the state or federal courts of and located in, respectively, New York County in the State of New York, the United States of America, or the federal district in which that county falls.
Modifications to this Arbitration Provision. If Ontra modifies this arbitration provision, other than a change to our address for delivery of a Notice, you may reject the modification by sending us written notice within 30 days of being notified of that modification to Ontra’s Notice Address, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Ontra.
Ontra reserves the right to modify or update these Terms and the Services (subject to the terms of any Customer Agreement) from time to time. Ontra will notify you of any material modifications or updates to these Terms by providing you notice of those modifications or updates through the Services. You agree that Ontra has no responsibility to update you with respect to non-material modifications or updates. It is your responsibility to review these Terms periodically while accessing or using the Services. If you don’t agree with the new Terms, you are free to reject them; unfortunately, this means you will no longer be able to use or access the Services. You understand and agree that your continued use of the Services following Ontra’s posting a notice of any modification or update to these Terms indicates your acceptance and agreement to all such modifications and updates. Except for changes by us as described herein, no other amendment or modification of these Terms will be effective unless in writing and agreed upon by both you and us.
As part of the Services and if you provide your contact information you agree to receive communications directly by email or through the Services regarding such Services from Ontra. If you contact us via the Services or by direct email, you are communicating with us electronically. If you contact us electronically, you agree to receive communications from us electronically. We will communicate with you by email or by posting notices on the Site or through the Platform Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
By signing up for the Services or a User Account, you confirm that you want Ontra to send you information by email regarding your account or transactions with us or that we think may be of interest to you, and you agree to receive communications from Ontra, and you represent and warrant that each person you register for the Services or for whom you provide email addresses has consented to receive communications from Ontra. You agree to indemnify and hold Ontra harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Ontra takes reasonable steps designed to maintain security of its systems and the Services. However, we cannot guarantee the security of our systems or Services, and we do not have any control over the security of the networks you use to transmit information to the Services. If you have reason to believe system security has been breached, or if you encounter any issues with the Services, please contact us at [email protected].
Nothing in the Services, any software component of the Services or the Documentation nor any portion thereof constitutes legal, tax, accounting, regulatory or other professional advice, opinion, or recommendation by Ontra or its affiliates. Neither Ontra nor its affiliates is a law firm or provides legal services, advice, or representation. If legal or other professional assistance is required, the services of a competent professional should be sought. You assume all responsibilities and obligations with respect to any decisions, advice, conclusions, legal or tax opinions, or recommendations made or given as a result of your use of the Services, including without limitation any decision made or action taken in reliance upon content, or incorporating or referencing the content made available or accessed through the Services. No attorney-client relationship is formed with Ontra or any of its affiliates by virtue of providing the Services. None of the Services or content shall constitute or be construed as a recommendation, solicitation, offer, opinion, by Ontra or any of its affiliates for any financial transaction, the purchase of a financial instrument, including but not limited to securities, or any kind of investment.
In accordance with the Digital Millennium Copyright Act (“DMCA), Ontra has adopted a policy that provides for the removal of any User content that infringes on the rights of Ontra or of a third party or that violate intellectual property rights generally. Ontra reserves the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
Copyright Infringement. If you have evidence, know, or have a good faith belief that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please provide Ontra with a notice of copyright infringement containing the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Ontra to locate the material and verify its existence; (iv) information reasonably sufficient to permit Ontra and/or our Copyright Agent to contact you, such as an address, telephone number, and, if available, email address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above-written information must be sent to our registered “Copyright Agent” as follows:
Copyright Agent c/o InCloud, LLC, 2041 East Street PMB39, Concord, CA 94520, [email protected]
Upon receipt of a proper notice of copyright infringement, we reserve the right to: (x) remove or disable access to the infringing material; (y) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and (z) terminate such content provider’s access to the Services if he or she is a repeat offender.
If you believe that your End User Data that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your End User Data, you may send a written counter-notice containing the following information to the Copyright Agent: (1) your physical or electronic signature; (2) identification of the End User Data that has been removed or to which access has been disabled and the location at which the End User Data appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the End User Data was removed or disabled as a result of mistake or a misidentification of the End User Data; and (4) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the Federal Court in the judicial district in which your address is located, or, if your address is located outside the United States, for any judicial district in which Ontra is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, Ontra may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed End User Data or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the End User Data provider, member, or user, the removed End User Data may be replaced, or access to it restored, in 14 business days or more after receipt of the counter-notice, at Ontra’s sole discretion.
Except as may be specified in an applicable Customer Agreement, these Terms constitute the entire agreement between you and Ontra with respect to the subject matter described herein and supersedes any and all other agreements, whether written or oral, or communications with Ontra regarding the Services. In the event of any inconsistency or conflict between these Terms and any Customer Agreement, the terms of the Customer Agreement will prevail with respect to your use of the Services as a Customer Authorized User on behalf of the Customer. You may not assign, novate or otherwise transfer any rights or obligations under these Terms without Ontra’s prior written consent. Any attempted or purported assignment, delegation or other transfer by you without such consent shall be void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. Except as expressly set forth herein, you and Ontra agree there are no third-party beneficiaries intended under these Terms. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable and such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any of Ontra’s rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver by Ontra thereof, and no single or partial exercise of any right, remedy, power, or privilege under these Terms will preclude any other or further exercise thereof by Ontra or the exercise of any other right, remedy, power, or privilege by Ontra. Except as explicitly set forth herein, no other act, document, usage, custom or course of dealing shall be deemed to amend or modify these Terms.
BY ACCEPTING THESE TERMS AND CONTINUING TO ACCESS OR USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS.