Terms & Conditions
BY DOWNLOADING THE OPEAR APP (THE “APP”) OR BY ACCESSING, VIEWING, OR USING THE APP, THE OPEAR SITE (THE “SITE”) OR ANY TOOLS AND SERVICES PROVIDED IN CONNECTION WITH THE APP OR THE SITE (COLLECTIVELY, THE APPS, THE SITE AND ALL RELATED TOOLS AND SERVICES ARE REFERRED TO AS THE “SERVICE”), YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS CONTAINED IN THESE TERMS.
This Service is owned and operated by Opear Holdings, Inc., a Delaware corporation (collectively referred to as “OPEAR,” “Company,” “us,” “we” or “our”). Your use of the Service, or attempted use of the Service shall be deemed to constitute your consent to be bound by these Terms and shall be enforceable in the same way as if you had signed these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, PLEASE DO NOT USE THE SERVICE.
1.1. The Service is a platform offering tools and resources to those seeking to provide child care services (the “Service Providers”) to provide information about themselves and allow parents (the “Parent Users” and collectively, with Service Provider, “Users”) the ability to schedule and pay for on-demand, short term child care services (each an “Engagement”).
1.2. OPEAR is not a party to any Engagement between Parent Users and Service Providers. Parent Users contract directly with Service Providers for each Engagement. OPEAR has no control over the conduct of any Users.
1.3. You agree to exercise caution and perform your own screening before connecting with anyone through the Service, meeting anyone, engaging Users or accepting Engagements. By using the Service, you acknowledge and agree that you are solely responsible for your use of the Service, Engagements, and the connections you make and that ALL USE OF THE SERVICE IS AT YOUR SOLE AND EXCLUSIVE RISK.
2. User Registration.
To obtain full access to the Services, you are required to create an account. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and/or mobile device, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You accept responsibility for all activities that occur under your account or password and such use shall be deemed to be use by you. You will ensure that all use of your account fully complies with these Terms. Transfer of the account by you to any other person or entity is prohibited.
3. Age Restrictions on Use of the Service
The Service is not directed towards children. You must be at least eighteen (18) years of age to access or use the Service. By registering to use our Service, you certify that you are 18 years of age or older. Children under the age of 18 may not register or otherwise use the Service, and parents or legal guardians may not agree to these Terms on their behalf.
4. Parent User
This section applies if you use the Services as a Parent User.
4.1.1. You acknowledge that OPEAR does not provide child care services or function as a Service Provider. OPEAR’s Service may be used by you to request and schedule child care services from Service Providers, but you agree that OPEAR has no responsibility or liability to you related to any child care services provided to you by Service Providers through your use of the Service other than as expressly set forth in these Terms. We have no control over the conduct of our Service Providers or the truth or accuracy of the information that Service Providers provide through the Service. Parent Users are solely responsible for complying with all legal requirements regarding payment of and working conditions for Service Providers.
4.1.2. You understand and agree that OPEAR: (A) does not employ, recommend or endorse any Service Providers, (B) is not responsible or liable in any manner for the performance or conduct of any Service Providers online or offline; (C) makes no representations or warranties about the quality of the services provided by any Service Provider or about your interactions or dealings with a Service Provider; and (D) does not screen Service Provider in any manner or conduct any kind of identity or background checks on Service Providers except as otherwise expressly stated in these Terms. Regardless of whether OPEAR screens Service Providers or performs a background check, you should exercise caution and perform your own screening before connecting with Service Providers through our Services, meeting anyone, hiring Service Providers, or purchasing their services. OPEAR expressly disclaims, and you hereby expressly release OPEAR from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm or damages arising from or related to our Services or your interactions or dealings with Service Providers, including any acts or omissions of Service Providers online or offline. All use of our Services is at your sole and exclusive risk.
4.2 Fees, Expenses and Gratuities. You understand and agree that you are responsible for paying the charges for the services you receive from a Service Provider as specified via the Services (“Fees”). Additionally, you understand and agree that you are responsible for paying all out-of-pocket expenses, approved by you, that a Service Provider incurred in performing his or her duties during any Engagement with you (“Expenses”). Additionally, while the Fees and Expenses are intended to fully compensate the Service Provider for the services or goods provided, you may, at your sole discretion provide additional gratuity to a Service Provider that provides you with services. Any gratuity is entirely voluntary. You understand and agree that you are responsible for paying any gratuity that you specify for a Service Provider via the Services (“Gratuity”).
4.3 Payment Method. The Services allow you to use and store a payment method that is acceptable to us or our third party payment processor (“Payment Method”) to pay the Fees, Expenses and Gratuity. You represent and warrant that you are authorized to use the Payment Method. All Fees, Expenses and Gratuities are shown in U.S. dollars (except where otherwise noted via the Services). You authorize OPEAR, or our third-party payments processor, to charge the Fees, Expenses and Gratuity to your Payment Method for any services you purchase via the Services. If the Payment Method cannot be verified, is invalid, or is not otherwise acceptable, your purchase may be suspended or cancelled automatically. You agree to keep any stored Payment Method information current at all times, and that we may submit charges for processing even if the Payment Method has expired or changed by the time we submit it. You must resolve any problem we encounter in order to proceed with your order.
4.4. Refunds. All payments are final and non-refundable, unless otherwise determined by OPEAR.
4.5. Discounts and Pricing. As between you and OPEAR, OPEAR reserves the right to establish, remove and/or revise pricing for any or all services or goods obtained through the use of the Service at any time in OPEAR’s sole discretion. OPEAR may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Service or the applicable Fees.
5. Service Provider
This section applies if you use the Services as a Service Provider.
5.1. Consent to Use of Data and Mobile Communications. The Service will require Service Providers to utilize the GPS tracking on their mobile devices at all times that the Service Provider accesses the Service. The Service Provider hereby agrees to activate such geolocation information on their mobile device as a requirement to use the Service. The Service Provider also agrees and consents to the use of this location tracking information by OPEAR any time that the Service Provider uses the Service and by Parent Users during an Engagement.
5.2. Identity and Background Verification. You are responsible for providing true, accurate, current and complete information about yourself, as requested via the Services, and maintaining and promptly updating all such information so it remains true, accurate, and complete at all times. You agree that OPEAR shall be entitled to create a profile with the materials you provide via the Services. You will have final approval over your Service Provider profile, and you are responsible for ensuring that your profile is true and accurate in all respects.
5.3. Criminal Background Checks. You hereby acknowledge and agree that (i) in light of the nature of the child care services offered through the Services, a criminal background check is a condition of your use of the Service; and (ii) during your use of the Service, OPEAR may conduct further routine criminal background checks at its sole discretion. By accepting these Terms, the Service Provider has consented to OPEAR obtaining the Service Provider’s criminal conviction history from a third party service provider. Before taking an adverse action on the basis of the criminal background check, OPEAR will provide the Service Provider with a copy of the criminal background check and summary of rights, and it is your duty to notify OPEAR within five business days if the information is inaccurate or incomplete. The Service Provider hereby agrees that he or she will be responsible for all costs related to the criminal background checks. The Service Provider hereby fully releases and discharge the Company, its officers, agents, and employees, from any and all claims for damages which may arise from participating in or as a result of the criminal background check.
The Service Provider hereby acknowledges and agrees that it has been provided copies of all the relevant statutory disclosure notices regarding the criminal background check that will be performed.
5.4 Assessment. All Service Providers will be required to pass a timed child care exam with an 80% score or better prior to being listed as a Service Provider via the Services. The Service Provider will have three attempts to pass the assessment.
5.5 Types of Service Providers
5.5.1 Opear Sitter. To be listed as an Opear Sitter you must meet the requirements in these Terms, including completion of the background checks and assessments set out in Sections 5.3 and 5.4 and providing the references and any other information specified via the Services.
5.5.2 Opear Nurse. To be listed as an Opear Nurse, you must meet the requirements for an Opear Sitter and provide proof of license as specified via the Services. FOR THE AVOIDANCE OF DOUBT, OPEAR NURSES DO NOT PROVIDE ANY MEDICAL SERVICES. IF A SERVICE PROVIDER OFFERS TO PROVIDE MEDICAL SERVICES VIA THE SERVICE, THE SERVICE PROVIDER WILL BE TERMINATED FROM USE OF THE SERVICE.
5.5.3 Buddy. To be listed as a Buddy, you must meet the requirements for an Opear Sitter. Service Providers engaged as a Buddy must have a Parent User present at all times during the Engagement.
5.6 Payments. To accept payments from Parent Users for your services, you must set up a payment account via the Services. You hereby appoint OPEAR as a limited payment collection agent solely for the purpose of accepting payments from Parent Users for your services. Any payments made by a Parent User through OPEAR for your services shall be considered the same as a payment made directly to you. In accepting appointment as your limited collection agent, OPEAR assumes no liability for any of your acts or omissions. OPEAR will initiate payments to you for the Fees, Expenses and Gratuity actually received by OPEAR from Parent Users of your services, less any refunds provided by OPEAR and less thirty percent (30%) of the gross Fees, which shall be retained by OPEAR (the “Company Commission”). The Company Commission is not applied to Gratuities and Expenses received by OPEAR from Parent Users of your services, which will be paid to you without deduction.
5.6.1 Disputes & Reductions. The Service Provider hereby agrees and acknowledges that the Fees shall be adjusted based on any discounts, rebates, refunds or allowances determined by the Company at any time, in its sole discretion. In the event of any dispute by a Parent User regarding any Fees paid to the Service Provider, the Company shall have the exclusive authority to settle or resolve any such dispute, including, but not limited to providing the Parent User a discount or refund of the Fees paid for the Service Provider services. Any discount or refund will reduce the Fee amount and Company can reduce payments to Service Provider, or seek payment back from Service Provider, as applicable.
5.6.2 Reimbursable Expenses. Service Provider must get all expenses approved by the Parent User via the Service prior to incurring such expense. For the avoidance of doubt, in the event the Parent User has not authorized or approved the expenses via the Service, the Service Provider shall not be entitled to any reimbursement or payout of such expense.
5.6.3 Fees. The Company, in its sole discretion, sets the Fees for each type of Service Provider. Fees shall be subject to review and further modification of the Company at any time. The Company will provide Service Provider at least thirty (30) days advance notice of any changes to the Fees. Service Provider’s continued use of the Service shall be deemed acceptance and agreement to the new Fees.
5.7 No Benefits/No Employment Relationship. Nothing in these Terms shall be construed to create an employment relationship between the Company and the Service Provider. You shall not be eligible to participate in, or receive benefits under, any of the Company’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. The Company shall not provide disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to you, except as expressly required by applicable laws.
5.8 No Assurances. You acknowledge and agree that the Company makes no assurances that you will be selected by Parent Users to provide child care services. You agree that the Company shall provide a rating mechanism for Parent Users to rate you and the services that you provide following an Engagement based on the rating standards provided by the Company.
5.9 No Parent User Investigation. You hereby understands and acknowledges that (i) the Service is exclusively intended as a method for the Service Provider to connect with Parent Users seeking child care services; (ii) the Company does not investigate, recommend or endorse the Parent Users and therefore cannot make any assurances as to the Service Provider’s safety in providing child care services; and (iii) the Company does not verify any information provided by Parent Users.
6. Compliance with Laws; Licensing; Taxes.
6.1 Compliance with Laws. You agree to comply with all applicable federal, state and local laws and regulations when using the Service and when providing or receiving any child care services booked through the Service. If you are a Service Provider, you represent and warrant that you are legally in the jurisdiction of the United States and legally able to work in the United States. You may only use the Service for lawful purposes.
6.2 Licensing. As a Service Provider, you may be subject to specific laws and regulations in connection with your provision of child care services, including laws and regulations that require you to obtain a permit, license or bond before providing such services (“Legal Requirements”). You agree that you are solely responsible for determining what Legal Requirements apply to you, and for complying with all applicable Legal Requirements. OPEAR does not determine whether a Service Provider is subject to, or in compliance with, any Legal Requirements, including, but not limited to, any licensing or disclosure requirements for licensed or registered nurses. As a Parent User, you agree that OPEAR is not responsible for making such determinations, and that a Service Provider may not be in compliance with Legal Requirements. Parent Users are encouraged to inquire directly with any Service Provider regarding Service Provider’s compliance with Legal Requirements. For the avoidance of doubt, even if a Service Provider that is identified as a nurse, the Services may not be used to book the Service Provider for any nursing or other medical services.
6.3 Taxes and Tax Reporting. You are responsible for complying with all applicable tax laws and regulations related to use of the Service and any services that you provide or receive in connection with the Service. Without limiting the foregoing, you agree that it is your responsibility to determine any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding and other taxes and/or duties assessed, incurred or required to be collected, paid or withheld for any reason in connection with any request for, or performance of services, or your use of the Service (all such taxes, “Taxes”) and to collect, withhold, report, and remit correct Taxes to the appropriate tax authority, and to otherwise be responsible for the collection and payment of any and all Taxes. You further agree that OPEAR and its affiliates are not obligated to determine whether Taxes apply to you or any services you provide or receive and are not responsible for collecting, reporting or remitting any taxes that may be applicable to you. OPEAR does not provide an employment service and does not serve as an employer of any Service Provider. As such, OPEAR will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with a Service Provider’s user of the Service or provision of services to Parent Users. In the event that OPEAR is found to be liable for any tax or withholding tax arising from your use of the Service or provision of services, you agree to immediately reimburse and pay to OPEAR an equivalent amount, including any interest or penalties thereon. OPEAR encourages each user to consult with a tax professional to better understand the user’s tax obligations. OPEAR cannot provide advice on Taxes or how users should report their income. While OPEAR is not a party to the transaction between the Parent User and a Service Provider, OPEAR may be required to issue an IRS Form 1099 or other tax reporting form. Parent Users and Service Providers agree to provide OPEAR with all information necessary for OPEAR to issue an IRS Form 1099 or other tax reporting form.
7. User Conduct. In connection with your use of our Service, you must act responsibly and exercise good judgment. Without limiting the foregoing, you will not:
7. 1 use the Service for any commercial purpose, unless expressly authorized by OPEAR;
7.2 use the Service to recruit, or solicit users for employment, or contact users to conduct business on behalf of a third party sitting service or network of Service Providers;
7.3 use the Service for competitive purposes, such as to ascertain the features or technical infrastructure of the Service;
7.4 violate any local, state, provincial, national, or other law or regulation, or any order of a court;
7.5 infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
7.6 interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
7.7 use the Service to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, personal contact information or credit, debit, calling card, account numbers or photographs of others without their permission;
7.8 use the Service in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to services usually arranged via the Service;
7.9 “stalk” or harass any other user of our Service;
7.10 collect or store any information about any other user other than for purposes of performing the services contemplated by the Service;
7.11 extract profile information or contact information from profiles, whether to list such information on third party sites or for any other purpose;
7.12 register for more than one user account or register for a user account on behalf of an individual other than yourself;
7.13 impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
7.14 use automated scripts to collect information or otherwise interact with the Service except through APIs provided by OPEAR;
7.15 violate the restrictions in any robot exclusion headers on the Service or bypass or circumvent other measures employed to prevent or limit access to the Service;
7.16 use the Service to find a Service Provider or Parent User of the Service and then complete a transaction outside of the Service in order to circumvent your obligation to pay for the Service; or
7.17 use the Service to engage in any personal or sexual relationship with another user.
The foregoing is merely a list of examples of prohibited conduct. OPEAR reserves the right to suspend or cancel a user account or take other appropriate actions in its sole discretion in response to any inappropriate conduct, or for no reason at all.
8. Third-Party Content and Service.
In using our Service, you may be exposed to content and information from other users or third parties or links to third-party websites (“Third-Party Content”). We do not control, and shall have no responsibility for, Third-Party Content, including material that may be unlawful, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable, or products or services that do not conform to your expectations. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third- Party Content, including without limitation, profiles of other users of our Services. Your business dealings or correspondence with, or participation in promotions of, third parties other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
9. Disclaimers; Limitation of Liability; Indemnity.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” OPEAR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, OPEAR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. OPEAR DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF SERVICE PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9.2 LIMITATION OF LIABILITY
OPEAR SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICE, EVEN IF OPEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPEAR SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN A PARENT USER AND ANY SERVICE PROVIDER, EVEN IF OPEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPEAR SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OPEAR’S REASONABLE CONTROL. IN NO EVENT SHALL OPEAR’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING LIABILITY FOR GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT BY OPEAR. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold OPEAR and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Service or services or goods obtained through your use of the Service; (ii) your breach or violation of these Terms; (iii) your violation of the rights of any third party; (iv) your negligence or willful misconduct; (v) any injury to persons or damage to property related to your use of the Service; and (vi) any unauthorized use of the Service.
To the fullest extent permitted by applicable law, you release OPEAR from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
10. Limited License
Our Services and the text , graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Company Content”) are owned by us or some third party and protected by law. You may not copy or use any Company Content except as provided in these Terms or with our prior written approval. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Company Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Company Content; (b) copy, reproduce, distribute, publicly perform or publicly display Company Content, except as expressly permitted by us or our licensors; (c) modify the Company Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Company Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Company Content other than for their intended purposes. Any use of our Services or Company Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
If you submit any information to us, including any comments, remarks, suggestions, ideas, notes, drawings, graphics, concepts, or other information (collectively, “User Content”), you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain, repurpose, and commercialize the User Content in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same.
You own the copyright in any User Content and are solely responsible for such content. You may not submit or transmit any material that is unlawful, threatening, libelous, defamatory, obscene, pornographic, profane, or might in any other way violate any law. We may from time to time monitor, review and, in our sole discretion, modify or delete any postings you make on the Services however, we are not obligated to do so. Whether or not we modify or remove such material, you remain solely responsible for any material you submit to us.
Although we do not claim ownership of User Content, the Feedback (defined below) you provide to us will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. The term “Feedback” refers to the content you post on or through the Services that is specifically about how we can improve the Services.
13. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against OPEAR, you will first give us an opportunity to resolve your problem or dispute. This includes sending written notice with a description of your problem or dispute to us by U.S. Mail to 2611 Merrick Rd. P.O. Box 362, Bellmore, N.Y. 11710, Attn: Michael Demetriou. You agree to negotiate with OPEAR in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after OPEAR’s receipt of your written notice, you agree to the dispute resolution provisions below.
Arbitration Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, OPEAR, and/or any involved third party relating to your use of the Services, your relationship with OPEAR, or these Terms. You and OPEAR agree to binding arbitration for the resolution of any Claims. By agreeing to arbitrate, you waive the right to go to court and any rights to a jury trial, and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and OPEAR both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. OPEAR will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Arbitration Location. The arbitration will be held in New York County, New York. It may be held by telephone or through written submissions if both you and OPEAR agree.
Sponsoring Organization, Rules. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitration will be conducted in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms and this arbitration provision.
WAIVER OF CLASS ACTION. The parties agree to arbitrate solely on an individual basis, and that THESE TERMS DO not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. 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. Notwithstanding the ARBITRATOR’S power to rule on its own jurisdiction and the validity or enforceability of the agreement to arbitrate, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
Arbitration Fees. OPEAR shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN THE EARLIER OF (x) TWO YEARS AFTER SUCH CLAIM AROSE, OR (y) THE APPLICABLE STATUTE OR LIMITATIONS PERIOD FOR SUCH CLAIM; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND OPEAR WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE YOU FIRST ACCEPTED THESE TERMS BY WRITING TO MICHAEL DEMETRIOU AT 2611 Merrick Rd. P.O. Box 362, Bellmore, N.Y. 11710. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF THE BINDING ARBITRATION. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE CLAIMS IN ACCORDANCE WITH SECTION 14.
14. Governing Law and Venue
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of New York, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that any controversy excluded from the arbitration provisions (other than an individual action filed in small claims court) shall be filed only in New York County, New York, or the United States District Court for the Southern District of New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
15. Copyright Policy
It is OPEAR’s policy to respect the copyright and intellectual property rights of others. OPEAR may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, OPEAR may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further OPEAR complies with the Digital Millennium Copyright Act.
If you believe in good faith that your work has been copied in a way that infringes a copyright that you own or control, please provide OPEAR’s Copyright Agent the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed.
A description of where the material that you claim is infringing is located on the Services.
Your address, telephone number, and e-mail address.
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you, made under penalty of perjury (e.g., notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Designated Agent: Michael J. Demetriou
Address: 2611 Merrick Rd. P.O. Box 362
Bellmore, N.Y. 11710
Telephone Number: N/A
Fax Number: N/A
E-Mail Address: email@example.com
Please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to OPEAR for certain costs and damages.
16. Modifications to the Terms
OPEAR may make changes to these Terms, from time to time, in its sole discretion, by updating this posting on the Service without notice to you. Your continued use of the Service following the posting of a new version of the Terms constitutes your acceptance of any such changes. Accordingly, whenever you use the Service, check to see if a new version has been posted.
OPEAR reserves the right, without notice and in our sole discretion, to terminate your right to access or use our Services. For example, a Service Provider failing to utilize the Service for more than thirty (30) days or any user repeatedly cancelling Engagements following acceptance without twenty-four (24) hours advance notice could result in termination of your right to use the Service. We are not responsible for any loss or harm related to your inability to access or use our Services, and we are not responsible for refunding or returning any Company Costs or amounts paid by you for use of the Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
19. Other Important Terms
OPEAR may assign, transfer, or sub-contract any of our rights or obligations under these Terms to any third party at our discretion. Any representations, warranties, and indemnification obligations made or undertaken by you will survive cancellation or termination of your account or relationship with OPEAR. No delay by OPEAR in exercising any right or remedy under these Terms shall operate as a waiver of that right or remedy or shall affect OPEAR’s ability to subsequently exercise that right or remedy. Any waiver must be agreed to by OPEAR in writing. These Terms supersede any other terms previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise.
20. Additional Terms Applicable to iOS Devices
The following terms apply if you are installing, accessing or using the App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”).
20.1 Acknowledgement. You and OPEAR acknowledge that these Terms are concluded solely between us, and not with Apple, and OPEAR, not Apple, is solely responsible for the Services and the content thereof. You further acknowledge that the usage rules for the Services are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Services, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
20.2 Scope of License. The license granted to you is limited to a non-transferable license to use the Services on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
20.3 Maintenance and Support. You and OPEAR acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
20.4 Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of OPEAR. However, you understand and agree that in accordance with these Terms, OPEAR has disclaimed all warranties of any kind with respect to the Services, and therefore, there are no warranties applicable to the App.
20.5 Product Claims. You and OPEAR acknowledge that as between Apple and OPEAR, OPEAR, not Apple, is responsible for addressing any claims relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
20.6Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, OPEAR, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
20.7 Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
20.8 Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to:
Opear Holdings, Inc. Attn: Michael Demetriou 2611 Merrick Rd. P.O. Box 362
Bellmore, N.Y. 11710
20.9 Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).