Terms of Service
Effective date: September 19, 2022
Oooh (“Oooh,” “we,” “us,” “our”) provides a mobile application and related services (collectively, the “Platform”), that are subject to the following Terms of Service (the “Terms”). The Terms serve as an agreement between you and us and set forth the terms and conditions by which you may access and use the Platform. The Terms apply to all users of the Platform, including individuals who curate and create content (we call them “creators”). For purposes of these Terms, we refer to all users collectively (including creators) as “you,” “your,” or “users.”
If you are under age 18, you may only use the Platform with the consent of your parent or legal guardian. Please be sure your parent or legal guardian has reviewed and discussed these Terms with you. If you are a parent or guardian of a user under the age of 18, you acknowledge and agree that you have the authority to provide this consent on behalf of such user and that you provide consent for such user to use the Platform.
PLEASE READ THESE TERMS CAREFULLY, AS THEY GOVERN YOUR USE OF THE PLATFORM. PLEASE ALSO FULLY REVIEW SECTION 15 “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” AS THIS PROVISION WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING SECTION 15, PLEASE DO NOT USE THE PLATFORM.
2. Modifications to the Terms
We reserve the right, in our sole discretion, to change or modify portions of these Terms at any time. If we do this, depending on the nature of the change, we will post the changes on the Platform and indicate the new effective date at the top of the document. Depending on the type of change, we may also provide you other reasonable means of notification as required by applicable law. Your continued use of the Platform after the date any such changes become effective constitutes your acceptance of the new Terms. In addition, when using certain aspects of the Platform, you may be subject to any additional terms applicable to the Platform that may be posted and presented to you on the Platform from time to time.
4. Access to and Use of the Platform
Platform Description. The Platform, and any content accessed or viewed through the Platform, are solely for your personal and non-commercial use. We grant you a limited, non-exclusive, non-transferable, license to access and use the Platform as permitted by these Terms. Except for the foregoing limited license, no right, title, or interest shall be transferred to you. You agree not to use the Platform for public performances. We may revoke your license at any time in our sole discretion. Upon such revocation, you must promptly destroy all content downloaded or otherwise obtained through the Platform, as well as copies of such materials, whether made in accordance with these Terms or otherwise.
Account Registration. You may be required to register in order to access and use the Platform. If you choose to register, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted during registration. We may enable you to use limited functionality of the Platform without such registration. You are fully responsible for any and all activities that occur under your password or account, and it is your responsibility to ensure that your password remains confidential and secure. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security using the contact information contained at the end of these Terms, and (b) ensure that you exit from your account at the end of each session when accessing the Platform. We will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Platform. We reserve the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform. We have no obligation to retain your account or User Content (as defined below) for any period of time beyond what may be required by applicable law, or as otherwise in our discretion.
General Practices Regarding Storage and Data Use. You acknowledge that we may establish general requirements and limits concerning the maximum period of time that data or User Content will be retained by the Platform and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or User Content maintained or uploaded to the Platform. As a result, we recommend that you save copies of any User Content that you post to the Platform on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. Please note that you are responsible for any mobile charges that may apply to your use of the Platform, including text-messaging and data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Platform.
5. Platform Rules and User Conduct
To help ensure that the Oooh Platform remains a safe and fun place for all users, users are expected to comply with the following rules.
You agree that you will not use the Platform to:
- engage in any conduct, or post or distribute any content, that is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, discriminatory, racially hateful, ethnically or otherwise objectionable, or that in our sole judgment is objectionable or restricts or inhibits any other person from using or enjoying the Platform, or which may expose us or any users to any harm or liability of any type
- post any content that is deliberately designed to provoke or antagonize people, especially trolling and bullying, harm, hurt, scare, distress, embarrass, or upset people
- post content that would constitute, encourage, or provide instructions for a criminal offense, dangerous activities, or self-harm
- post or distribute any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation
- engage in commercial purposes, except as permitted by us or in compliance with an applicable developer agreement or API provided by us
- attempt to buy, sell, or transfer any aspect of your account (including your username) or solicit, collect, or use login credentials or experience points of other users
- scrape, access, monitor, index, frame, link, or copy any Content or information on the Platform by accessing the Platform in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Platform through a browser or accessing the Platform through any API provided or approved by us
- breach the restrictions in any robot exclusion headers of the Platform, if any, or bypass or circumvent other measures employed to prevent or limit access to the Platform
- interfere with or disrupt the Platform or servers or networks connected to the Platform
- violate any applicable local, state, national or international law, or any regulations having the force of law
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including giving the impression that any User Content you upload, post, transmit, distribute, or otherwise make available emanates from the Platform
- solicit personal information from other users, including, but not limited to, for the purpose of sending unsolicited emails or other unsolicited communications
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities
- access or use the Platform if you are not fully able and legally competent to agree to these Terms or are not authorized to use the Platform by your parent or legal guardian.
Creator Prompts or Solicitations: Creators may request content from users and/or prompt users to take certain actions (“Prompts”) on, through, or utilizing the Platform. Any Prompt or request must comply with these Terms and comply with applicable law. Oooh has the right to remove any request or Prompt if we reasonably believe it does not comply with these Terms or applicable law.
We reserve the right, at any time and without notice, to investigate and take appropriate legal action against anyone who, in our sole discretion, violates these Terms, including without limitation, removing the offending Content from the Platform, suspending or terminating the account of such violators, and/or reporting them to law enforcement authorities. Once a user’s account has been terminated, any Tokens or Achievements (as defined herein) accumulated by that user will be forfeited and may not be reinstated.
Games & Physical Activities
You understand that if you participate in games on the Platform that involve physical activities or Prompts, you do so at your own risk. You represent and warrant that you are physically fit to participate in such activities, and that you do not have any health problems or medical conditions that would make participation unsafe in any way.
6. Intellectual Property Rights
Platform Content, Software and Trademarks. You acknowledge and agree that the Platform may contain code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, features, or other materials (“Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Oooh, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Content, in whole or in part, except that the foregoing does not apply to User Content (as defined below) that you legally upload or create through the Platform.
Subject to the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Platform, and to access the Content solely for your personal, non-commercial use. Oooh reserves all rights not expressly granted herein in the Platform and the Content. You acknowledge and agree that Oooh may terminate this license at any time for any reason or no reason.
If you are blocked by Oooh from accessing the Platform (including blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). The technology and software underlying the Platform or distributed in connection therewith are the property of Oooh, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Oooh.
The Oooh name and logos are trademarks and service marks of Oooh (collectively the “Oooh Trademarks”). Other product and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Oooh. Nothing in these Terms or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Oooh Trademarks displayed on the Platform, without our prior written permission in each instance.
You acknowledge and agree that we may generate revenues, increase goodwill, or otherwise increase our value from your use of the Platform, including, by way of example and not limitation, through the sale of Tokens (as defined herein), and except as specifically permitted by us in these Terms or in another agreement you enter into with us (for example, if you are a creator who has entered into a separate agreement with us), you will have no right to share in any such revenue, goodwill, or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from any User Content made available to you on or through the Platform, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Platform or on any third party service.
New Features. From time to time, Oooh may invite you to provide feedback regarding new features of the Platform. You agree to keep information about such features on the Platform confidential in accordance with any confidentiality requirements in such invitation and in accordance with any separate agreement between you and Oooh.
User Content. With respect to the Content you upload or create using the Platform or share with other users, including any ambient noise or background sounds or music contained in such Content (collectively, “User Content”), you represent and warrant that you own such User Content or that in posting or submitting such User Content, you are not otherwise infringing upon any copyrights or rights of publicity contained therein, and that your posting or transmission of User Content will not violate any third-party rights. By uploading any User Content you hereby grant and will grant Oooh, its affiliated companies and partners (collectively “partners”) a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, adapt, perform, publish, distribute, store, modify, analyze, and otherwise use and fully exploit your User Content and its meta data, in any and all media, form, medium, technology or distribution methods now known or later developed and for any and all purposes (commercial or otherwise). You further grant us, except as may be provided for in a separate agreement between us and you, a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.
You acknowledge and agree that when you view Content provided by others on the Platform, you are doing so on your own risk. The Content on the Platform is provided for general information only. It is not intended to amount to advice on which you should rely. Under no circumstances will Oooh be liable in any way for any Content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content.
You acknowledge that Oooh does not have an obligation to pre-screen Content, but that Oooh and its designees will have the right in their sole discretion to refuse or remove any Content that is available via the Platform, or to edit Content in any way. Without limiting the foregoing, Oooh and its designees will have the right, in their sole discretion, to remove any Content that violates these Terms or is deemed by Oooh to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. Please note that the ability to post or share User Content may be subject to age restrictions or restrictions based on user type (e.g., creators may be able to post more Content than other users) that may not make such features available to all users.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information relevant to the Platform (“Submissions”), provided by you to Oooh or its partners are non-confidential (with respect to Oooh) and Oooh and its partners will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
If you wish to complain about information and materials uploaded by other users please contact us at: email@example.com.
7. Legal Compliance
8. Copyright Complaints
Oooh respects the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, remove or disable access to material on the services that infringes upon the copyright rights of others. In the event that any users of our services repeatedly infringe on others’ copyrights, we may in our sole discretion terminate those individuals’ rights to use the services.
If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Oooh of your infringement claim by following the instructions in this Section.
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed (including, for example, a particular video segment);
- a description of where the material that you claim is infringing is located on the Platform, with enough detail that we may find it on the Platform;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Notices which meet all of these requirements will be considered “DMCA Notices” for purposes of Oooh’s repeat infringer policy. Oooh’s copyright agent for notice of claims of copyright infringement can be reached at the following:
Oooh, Inc., WeWork in Century City: 10250 Constellation Blvd, Los Angeles, CA 90067
Counter-Notice. If you believe that your User Content 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 upload and use the Content in your User Content, you may send a written counter-notice to the Copyright Agent above containing the following information to us at the contact information listed above:
- your physical or electronic signature;
- identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by us, we will send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy. Oooh reserves the right to remove or disable access to material on our websites or services that infringes upon the copyright rights of others. Oooh will, in appropriate circumstances and at our discretion, terminate a user’s account if it is determined the user is a repeat infringer. A repeat infringer is a user for whom Oooh has received multiple DMCA notifications. Oooh, however, reserves the right in its sole discretion to terminate a user at any time for copyright infringement, even without receiving a DMCA notice.
Upon receiving a DMCA notice, Oooh will provide a copy of the notice to the affected user. If the affected user provides Oooh with a counter-notice that complies with this policy in response to the DMCA notice, and the copyright owner providing the DMCA notice does not answer or during the course of legal proceedings a court finds that the Oooh user has not infringed a copyright, the notice will not count as a notification for purposes of Oooh’ repeat infringer policy. Likewise, if the copyright owner retracts his or her notice, it will not count as a DMCA notification under this policy.
9. Third Party Websites
The Platform may provide, or third parties may provide, links or other access to third-party sites and services. Oooh has no control over such sites and services and Oooh is not responsible for and does not endorse such sites and services. You further acknowledge and agree that Oooh will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or services. Any dealings you have with third parties while using the Platform are between you and such third parties, and you agree that Oooh is not liable for any loss or claim that you may have against any such third party.
10. Tokens and Payment Terms
The Platform may enable you to purchase or earn a limited license and right to use virtual tokens (“Tokens”) within the Platform, which enable you to access or unlock certain features of the Platform like Premium Ooohs and certain Oooh levels, boost your Oooh submissions, support Oooh creators, and receive responses from creators. In addition, you may be able to earn entitlements such as experiences points, in-game achievements, levels, or enhanced functionality (“Achievements”).
If you purchase Tokens or earn an Achievement, you will receive a limited non-assignable, non-exclusive, revocable, license and right to use such Tokens or Achievement. When you make a purchase on oooh.tv or another Oooh website, the payment page will let you know what payment methods you can use to pay when you make your purchase. By submitting an order through the Platform, you represent and warrant that you are authorized to use the designated payment method and authorize Oooh, or its designated payment processor, to charge the payment method you specify for the purchase amount, including all taxes and fees. All payments are to be made in United States Dollars, except where other currencies are offered via the payment methods made available by Oooh. When your purchase is complete, we may send you a confirmation email that will have details of the Tokens you have purchased. When you purchase Tokens on other platforms such as Apple, or Google, we are not a party to the transaction and your purchase will be governed by the third-party platform’s payment terms and conditions. Please review the platform’s terms of service for additional information. You understand and agree that, you are responsible for all purchases made through your Platform account or through any Platform account is able to make purchases through your third-party platform accounts such as Apple or Google. You acknowledge and agree that upon making any purchased Tokens available to you (or to their intended authorized recipients), Oooh will have fully satisfied its obligation to deliver or otherwise provide such content, regardless of any failure or inability to use such content.
Tokens and Achievements have no monetary value (i.e., they are not cash or the equivalent), and do not constitute currency or property of any type. Tokens and Achievements cannot be sold or transferred to third parties, including other users, cannot be used outside the Platform, and cannot be exchanged for cash or for any other goods or services. Users have no property, proprietary, intellectual property, ownership, or monetary interest in promotional or purchased Tokens or Achievements. Except as required by applicable law in your jurisdiction, Tokens, including unused Tokens, are non-refundable. You may not obtain a refund for Tokens that are not used or redeemed in the Platform. You may not purchase, sell, barter, or trade any Tokens or Achievements, or offer to purchase, sell, or trade any Tokens or Achievements (including for money or any other consideration or items of value whether inside or outside of the Platform). Any such attempted transfer will be null and void. Except as otherwise provided, Tokens you have redeemed or used will not be reimbursed to your account.
We do not guarantee that Tokens or Achievements will be available at all times or at any given time or that Tokens or Achievements will be offered for any particular length of time. Oooh may immediately suspend or terminate Tokens or Achievements for any or no reason, in our sole discretion, and without advance notice or liability. We may modify Tokens or Achievements at our sole discretion, and such modifications may make Tokens or Achievements more or less common, desirable, effective, or functional. Users should not rely upon the continued availability of any Tokens or Achievements.
Oooh reserves the right to change and update Tokens and Achievements without notice. We reserve all rights, title, and interest in Tokens and Achievements, and all associated copyrights, trademarks, and other intellectual property rights therein. Except as required by applicable law, any unused Tokens and any Achievements will be forfeited to Oooh upon termination of your Platform account.
ALL SALES ARE FINAL: YOU ACKNOWLEDGE THAT OOOH IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED TOKENS OR FOR ACHIEVEMENTS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR WHETHER YOU MADE A PAYMENT THROUGH OOOH.TV OR ANOTHER PLATFORM SUCH AS APPLE, GOOGLE, OR ANY OTHER SITES OR PLATFORMS WHERE WE OFFER OUR SERVICES AND THE PLATFORM.
11. Indemnity and Release
To the fullest extent permitted by law, you agree to release, indemnify, and hold Oooh and its partners and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform, any Content, your violation of these Terms, or your violation of any rights of another.
You acknowledge that participation in prompts, games or other activities on the Platform may involve both obvious and non-obvious risks of physical harm, including the risk of injury or death to you and others, as well as damage to property, and that these types of risks can be unforeseeable and sometimes cannot be avoided. To the fullest extent permissible by applicable law, you, on behalf of yourself, your family, your heirs, your agents, your affiliates, your representatives, your successors, your guardians and your assigns (collectively the “Releasing Parties”), agree to indemnify, hold harmless, and forever release and discharge Oooh and its respective officers, investors, partners, directors, elected officials, servants, agents, shareholders, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers (“Released Persons”) from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensation, claims, suits, causes of action, obligations, rights, and liabilities of any nature, type, or description, whether arising in tort (including negligence), contract, strict liability, or any other legal theory, whether known or unknown, contingent or vested, in law or in equity, whether or not we have been advised of the possibility of such damage, including but not limited to, property loss or damage, personal injury or loss of life, regardless of legal theory, that: relate to, are based on, concern, or arise out of these Terms, your use of the Platform (collectively the “Released Claims”). This Release is intended to be a general and complete release of all Claims and all Released Persons may plead the existence of this Release as a full and complete defense to any Claim.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOU ACKNOWLEDGE THAT YOU ENTER INTO THIS RELEASE FREELY, KNOWINGLY, AND VOLUNTARILY, AND THAT YOU INTEND IT TO BE A COMPLETE AND UNCONDITIONAL RELEASE AND WAIVER OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE PLATFORM.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO NEW JERSEY RESIDENTS.
12. Disclaimer of Warranties
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, OOOH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
OOOH MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF THE PLATFORM, CONTENT, USER CONTENT, OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS, BE ACCURATE, COMPLETE, OR UP TO DATE.
13. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OOOH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL OR OPPORTUNITY, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OOOH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR TO YOUR ACCOUNT DUE TO YOUR FAILURE TO KEEP YOUR ACCOUNT CREDENTIALS SECURE AND CONFIDENTIAL; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL OOOH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID OOOH IN THE LAST TWELVE (12) MONTHS, IF ANY, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. FOR EXAMPLE, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OR OUR EMPLOYEES, AGENTS, OR SUBCONTRACTORS. HOWEVER, IF YOU ARE A RESIDENT OF NEW JERSEY, THESE LIMITATIONS WILL APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
You agree that you are solely responsible for your interactions with any other third party arising out of your use of the Platform, including, by way of example and not limitation, any carrier, copyright owner, or other user, and Oooh and our affiliates will have no liability or responsibility with respect thereto. Oooh reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Platform.
14. Governing Law
These Terms are governed by the laws of the State of California, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to these Terms are the state courts located in Los Angeles County, California, or the United States District Court for the Central District of California, and both parties submit to the personal jurisdiction of these courts.
15. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Application. You and we agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver” is intended to be interpreted broadly and governs any and all disputes between you and us. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute with us before taking any formal action by contacting us at firstname.lastname@example.org. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and we agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and we agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
Binding Arbitration. f we do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below). Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Platform shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions. Contact information for JAMS, as well as copies of the JAMS rules and applicable forms, are available at www.jamsadr.com.
Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 555 West 5th Street, 32nd Floor, Los Angeles, California, 90013; and (iii) Send one copy of the Demand for Arbitration to us at: Oooh, Inc., WeWork in Century City: 10250 Constellation Blvd, Los Angeles, CA 90067
When you initiate arbitration against us, you are required to pay up to $250 of the Filing Fee to initiate arbitration. To the extent the filing fee for the arbitration exceeds that amount, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in California, United States, and you and us agree to submit to the personal jurisdiction of any federal or state court in California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver. YYOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and we expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets—but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. county (or parish) of your residence or in California, either party may elect to have such dispute adjudicated in such small claims court. Such election can be made by either party even after the other party initiates an arbitration. In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless it is unwilling to do so) and not the arbitrator or JAMS.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at email@example.com. Your written notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) the Effective Date of these Terms; or (ii) your first date that you used the Platform, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver.” If you opt out of these arbitration provisions, we also will not be bound by them.
Changes to This Section. We will provide thirty (30) days' notice of any material changes to this Section by posting notice on the Platform or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the Section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Platform.
Survival. This Mandatory Arbitration and Class Action Waiver Section shall survive any termination of your use of the Platform.
You agree that we, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any Content within the Platform, for any reason, including, without limitation, if we believe that you have violated these Terms. We may also in our sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, you agree that Oooh will not be liable to you or any third party for any termination of your access to the Platform.
These Terms constitute the entire agreement between you and Oooh and govern your use of the Platform. The failure of Oooh to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You may not assign these Terms without the prior written consent of Oooh, but Oooh may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Under no circumstances shall Oooh be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control. You agree that you will not export or re-export, directly or indirectly, the Platform or any Content, to any country for which the United States or any other relevant jurisdiction required any export license or other governmental approval at the time of export without first obtaining such license or approval. Under California Civil Code Section 1789.3, California users of the Platform receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platform of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at https://www.dca.ca.gov/about_us/contactus.shtml.