Terms & Conditions
Effective Date: September 16, 2019
Welcome to the Opear Platform, where you can find and book in-home pediatric care providers on demand!
Providers available through the Platform are able to provide services relating to minor pediatric illnesses and injuries only. If you have a medical emergency, call your doctor or 911 immediately. If your child has symptoms of a more significant illness or injury, please contact your regular physician. If your child needs requires emergency treatment, please call 911.
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING OUR PLATFORM.
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
- IMPORTANT INFORMATION ABOUT THE TERMS
- IMPORTANT INFORMATION ABOUT THE PLATFORM
- FEES AND PAYMENT TERMS
- USER CONDUCT GUIDELINES
- INTELLECTUAL PROPERTY OWNERSHIP
- NO ENDORSEMENTS
- WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
- GOVERNING LAW & DISPUTE RESOLUTION
1. IMPORTANT INFORMATION ABOUT THE TERMS
Opear provides an online marketplace for parents and guardians to find medical professionals to provide testing and treatment for minor pediatric illnesses and injuries during house-call appointments.
1.2 Key Terms
- “App” refers to any downloadable application (including, a mobile application) made available by Opear, through which access to Opear’s online marketplace and/or related features, functionality, tools and content is available. References to the “App” include any and all features, functionality, tools and content available on or through each such application.
- “Opear,” “we,” or “us” refer to Opear Holdings, Inc. and our officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.
- “Platform” refers, collectively, to any and all Websites, Apps and other technology through which Opear provides access to the Providers.
- “Providers” means individuals seeking to provide medical services, including testing, diagnoses and treatment.
- “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Website or App.
- “Website” refers to any website owned or operated by Opear (including the website currently located at www.Opear.com). References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
1.3 Platform Rules and Supplemental Terms
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) THROUGH ARBITRATION ONLY AND ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
THE TERMS DO NOT GOVERN, ANY TESTING, DIAGNOSIS, TREATMENT, OR OTHER SERVICES OFFERED BY PROVIDERS.
1.4 Amendment of Terms
Opear reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on Opear unless it is in writing and signed by an authorized representative of Opear.
1.5 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
2. IMPORTANT INFORMATION ABOUT THE PLATFORM
This Platform is not appropriate for certain people. For example:
- If your child has been referred to a specialist, if you child is currently seeing a specialist, or if your child has seen a specialist in the past in connection with his/her condition, you should not use this Platform.
- If your child has been recommended for surgery, is scheduled for surgery, or has had surgery in the past in connection with the condition, you should not use this Platform.
Accessing or using the Platform does not guarantee that a Provider will be able to provide testing, diagnosis or treatment for your child’s illness or injury, or obligate a Provider to provide any such service for your child. Despite any general guidelines for types of illness and injury for which Providers may provide services (testing, diagnosis or treatment) through the Platform, each Provider reserves the right, in his/her sole discretion, in each instance to determine whether and to what extent your child’s illness or injury is one for which he/she is able to provide services. If, in their sole discretion, the Provider is unable to provide services for your child, he/she may (but has no obligation to) refer you to a primary care provider.
IF YOU THINK YOUR CHILD MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. NEVER DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE OR DISREGARD SUCH ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON THE PLATFORM!
2.2 Role of the Platform
This online marketplace provided by Opear is intended to help parents and guardians find Providers. Any and all examinations conducted by the Provider are strictly between the User and the Provider. Opear is not a party to any such examination, or to any related consultation, testing or treatment between a User and a Provider.
RELIANCE ON ANY INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE PLATFORM OR OTHERWISE PROVIDED BY OPEAR IS SOLELY AT YOUR OWN RISK.
You hereby acknowledge and agree that:
- Opear’s role is limited to providing referral services;
- Opear is not a provider of medical or other healthcare-related services, or a distributor, seller or reseller of any of the medical and/or other healthcare-related services provided by any Provider;
- Opear is not a broker, contracting agent or insurer; and
- Opear makes no representation or warranty (i) as to truth or accuracy of any Provider’s statements, claims regarding her/his credentials, license, experience or expertise or any other information, or (ii) regarding any Provider diagnosis, advice or information provided by a Provider.
You hereby release Opear from any and claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected any dispute you may have with one or more Providers. You expressly waive any protections (whether statutory or otherwise) 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.
You agree that any legal remedy or liability that you seek to obtain for acts or omissions of Providers or other third parties will be limited to a claim against the particular Provider or third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Opear with respect to such acts or omissions.
2.3 License to Use
Subject to your compliance with the Terms, Opear grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform in the United States, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. The Platform are controlled and operated within the United States and use outside of the United States is prohibited.
2.4 Modifications and Updates to the Platform
Opear reserves the right, in its sole discretion, to modify or discontinue offering the Platform, in whole or in part, including any Website, App, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Opear has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
3.1 Account Registration
You must register for a User account before you are able to use the Platform. You may register to create an account directly via the Website or App.
You may not register for an account on behalf of any person (other than yourself).
No person or entity may have more than one active account at any given time.
3.2 Account Set-Up
Your account and account profile page will be created based upon the information you provide to us.
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Opear account or any other account that you may connect to your Opear account. You agree not to disclose your username or password to any third party, and you agree to immediately notify Opear of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Opear cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.3 Background Checks
As a Provider you are responsible for providing true, accurate, current and complete information about yourself, as requested via the Platform, 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 Platform. You will have final approval over your Provider profile, and you are responsible for ensuring that your profile is true and accurate in all respects.
As a Provider, you hereby acknowledge and agree that (i) a license check, criminal background check and peer reference check are a requirement for all Providers as a condition of your participation in the Platform; and (ii) Opear may conduct further periodic checks, in its sole discretion. For more information please visit Provider Background Checks.
To be listed as a Provider, you must provide your name, license number, and such other information as may be required by Opear, submit to and pass checks, as set forth above, and fulfill all other requirements specified on or through the Platform, as may be updated from time to time.
Providers will be unable to receive any referrals and/or book any appointments through the Platform until all of the foregoing requirements are completed to Opear’s satisfaction.
The Platform will require Providers to enable GPS or other geolocation tracking on their mobile devices at all times when the Provider wishes to accept referrals through the Platform. You consent Opear’s use of such location/tracking information when enabled by you.
If you are a Provider, you represent and warrant that you are legally in the jurisdiction of the United States and authorized to work in the United States, and that you will only use the Platform for lawful purposes. As a Provider, you may be subject to specific legal, regulatory, licensure and other requirements in connection with your ability to provide medical services, including without limitation, insurance requirements, continuing education requirements and, in certain cases, requirements with respect to supervision (collectively, “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 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 User, you agree that Opear is not responsible for making such determinations, and that a Provider may not be in compliance with Legal Requirements. Users are encouraged to inquire directly with any Provider regarding Provider’s compliance with Legal Requirements. For the avoidance of doubt, even if a Provider that is identified as a nurse, the Platform may not be used to book the Provider for any nursing or other medical services.
Nothing in these Terms shall be construed to create an employment relationship between Opear and the Provider. You shall not be eligible to participate in, or receive benefits under, any of the Opear’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Opear 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.
3.5 Account Suspension and Cancellation
You may cancel your account at any time.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform at any time for any reason.
Opear reserves the right to suspend or terminate your account or your access to the Platform if you create more than one account, or if any information provided during the registration process or thereafter, including any of your Feedback, is determined to be incomplete, inaccurate, out dated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Opear will have the right, but not the obligation to delete your information.
If Opear has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Opear’s reasonable satisfaction.
4. FEES AND PAYMENT TERMS
You agree to pay the fee for the monthly subscription fee for your subscription at the rate in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change.
4.2 Payment/ Credit Cards
Opear will automatically charge the credit card or payment account associated with your account at the beginning of the billing period, and billing will recur automatically at monthly or yearly intervals (as applicable) until you change or terminate your account. If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account. This may temporarily disrupt your access to your account while Opear verifies your new payment information.
We may contact you via email regarding your account, for example, in connection with a problem with your credit card or payment account.
4.3 Free Trial Offers
If you receive a free trial offer for a specific time period, you will not be charged during the period of the free trial, but the subscription fee will be automatically charged to the credit card associated with your account for the subsequent period the day after your free trial period has ended, in advance, in accordance with the “Subscriptions” terms stated above. Thereafter, you will be charged at monthly intervals until you decide to cancel. Please make a note of when your free trial will expire as you may not receive additional notice prior to the automatic charge if you do not cancel before the free trial period expires. Free trials are limited to one per person. If you attempt to register for a second free trial offer, Opear will automatically charge your credit card in accordance with the “Subscriptions” terms stated above. If you do not wish to pay the applicable fees for a subscription, you should cancel your account before the free trial period ends and not complete any subsequent registration for a subscription.
4.4 No refunds
Unless Opear agrees or states otherwise in writing, all fees and charges are nonrefundable.
4.5 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Opear is not liable in any way for any third party charges.
5. USER CONDUCT GUIDELINES
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below.
You agree that you will access and use the Platform for your personal use only.
You are not authorized to access or use the Platform:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to collect, store or use any information from or about another User, other than to provide aid to such User or as otherwise authorized and intended by such User;
- to “stalk,” harm or harass any other User;
- to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- recruit or otherwise solicit any person or entity to join a third-party service or website that is competitive to Opear or circumvent the obligation to pay any fees related to the Platform or for any other reason;
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any Platform content that belongs to Opear, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- share your user ID or username or transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Opear, unless you have been specifically authorized to do so in a separate agreement with Opear;
- use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, Opear’s name, any Opear trademark, logo or other proprietary information, without Opear’s express written consent;
- interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- access, tamper with or use non-public areas of any of the Platform, Opear’s computer systems, or the technical delivery systems of Opear’s service providers;
- probe, scan, or test the vulnerability of any system or network of Opear or its service providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Opear or any of Opear’s service providers or any other third party to protect the Platform;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
- decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform, or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 Reporting Misconduct
If you feel that another User has violated the Terms, abused the Platform, or otherwise acted inappropriately, you may report the User to Opear at email@example.com. Opear reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will Opear be liable for the acts or omissions of any User or any third party.
If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
Opear reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Opear has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform by any User, to access, review, preserve and disclose any User content, or to remove or disable access to any User content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Opear, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Opear, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform (including for customer support purposes).
5.3 User Cooperation
You agree to cooperate with and assist Opear or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
5.4 Policy Enforcement
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
6 INTELLECTUAL PROPERTY OWNERSHIP
6.1 The Platform
The Platform, including Website and App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform, and all intellectual property rights therein are the exclusive property of Opear and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Opear (the “Opear Marks”) are the property of Opear, and that you are not permitted to use the Opear Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Opear or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Opear’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Opear or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at firstname.lastname@example.org. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Opear. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Opear or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Opear all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Opear’s rights in such improvements, enhancements and modifications.
7. NO ENDORSEMENTS
You understand and agree that Opear: (i) does not employ, recommend or endorse any Providers, (ii) is not responsible or liable in any manner for the performance or conduct of any Providers online or offline; (iii) makes no representations or warranties about the quality of the services provided by any Providers or about your interactions or dealings with any Providers; and (iv) does not screen Providers in any manner or conduct any kind of identity or background checks on Providers, except as otherwise expressly stated in these Terms. Opear only conducts background checks and does not make any representations for the results thereof or any Provider credentials. Opear shall not be liable for any information not included in the background check or any errors or omissions in the processing of the background checks. Regardless of whether Opear screens Providers or performs a background check, you should exercise caution and perform your own due diligence before engaging any Provider through our Platform. 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 Platform or your interactions or dealings with Providers, including any acts or omissions of Providers online or offline. All use of our Platform is at your sole and exclusive risk.
7.2 Links to Third Party Websites and Services
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that Opear is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Opear of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to Opear that:
- You have the power and authority to accept and agree to the Terms,
- you own or control all of the rights necessary to grant the rights and licenses granted herein,
- if you are a Provider, you are in compliance, and will remain in compliance with all Legal Requirements applicable to your use of the Platform and performance of any and all services referred or booked on or through the Platform,
- you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with your access to or use of the Platform,
- the exercise by Opear of the rights granted by you hereunder will not cause Opear to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, OPEAR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, OPEAR DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE OPEAR AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL OPEAR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OPEAR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, OPEAR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPEAR AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Opear its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions available on and through the App, (ii) any interactions with any other User or with a Provider, (iii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv) your gross negligence or willful misconduct.
8.7 Obligation to Defend
You agree that, at Opear’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Opear may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Opear (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND OPEAR HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of New York without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York County, New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Opear agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform, including the App (collectively, “Disputes”) in the federal or state courts located in New York County, New York and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Opear retains the right to submit a Dispute to any court of competent jurisdiction. Opear also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.5 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST OPEAR ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND OPEAR OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.6 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Opear. We will notify you of amendments to this section by posting the amended Terms on www.opear.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Opear in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Opear may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
10.5 Survival of Terms
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Opear (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) ”herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) ”or” connotes any combination of all or any of the items listed, and (iii) ”including” (and any of its derivative forms) means “including but not limited to.”
10.13 Contact Us
If you have any questions or concerns, please contact Opear at email@example.com.
You can also write to us at:
Opear Holdings, Inc.
Attn: Michael Demetriou
2611 Merrick Rd. P.O. Box 362
Bellmore, N.Y. 11710
10.14 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to firstname.lastname@example.org.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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