BY CLICKING ON “I CLAIM MY PROFILE AND AGREE” LINK OR SIMILAR, SP AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF SP DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT USE, SP SHALL NOT CLICK ON “I CLAIM MY PROFILE AND AGREE” LINK AND SHALL NOT ACCESS OR USE THE SERVICES.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS, SP IS REPRESENTING AND WARRANTING THAT SP DOES NOT HAVE ANY CRIMINAL RECORD WHATSOEVER, HAS NOT BEEN CONVICTED OF A FELONY, AND HAS NOT ALREADY BEEN RESTRICTED BY OCM FROM USING THE SERVICES. OCM WILL BE IDENTIFYING SP AS “VERIFIED” ON THE SERVICES BASED UPON THESE REPRESENTATIONS. IF SP HAS ANY SORT OF CRIMINAL RECORD, OR HAS ALREADY BEEN RESTRICTED BY OCM FROM USING THE SERVICES, SP SHALL NOT CLICK ON “I CLAIM MY PROFILE AND AGREE” LINK AND SHALL NOT ACCESS OR USE THE SERVICES.
There may be times when OCMs offers a special feature that has its own terms and conditions that apply in addition to this Agreement. In such cases, the terms specific to the special feature control to the extent there is a conflict with this Agreement.
- TERM AND TERMINATION; SURVIVABILITY. This Agreement shall commence on the date where SP agrees to be bound by the terms of the Agreement and continue unless one Party gives the other Party prior written or email notice of its desire to terminate this Agreement at least thirty (30) days’ notice prior to the effective date of termination. OCM is also permitted to terminate this Agreement immediately if SP breaches this Agreement. On termination, SP loses the right to access or use the Services. Sections III (Password Protection), V (License, Ownership, Rights of Publicity),VI (Indemnification), XI (Relationship of the Parties), XII (Notices), XIII (Limitation of Liabilities), XV (Assignability), XVI (Dispute Resolution), XVII (Governing Law and Venue), XVIII (Miscellaneous) of this Agreement survive termination of this Agreement.
- SP CONDUCT.
- In connection with SP’s access to and use of the Services, SP agrees that while accessing or using the Services, SP will not:
- SP agrees to comply with any and all laws of the jurisdiction from which SP is accessing the Services and any other jurisdiction whose laws apply to SP or SP actions. SP agrees that SP will not access or use the information provided by the Services, or submit any content for use by the Services in violation of the aforementioned laws.
- PASSWORD PROTECTION.It is SP’s responsibility to protect SP’s password used to access the Services and not to disclose it to any other individual without the consent of OCM. SP must promptly notify OCM of any known or suspected unauthorized use of SP’s logon ID or password, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of SP’s password information. SP agrees that SP is fully responsible for the use and disclosure of SP’s logon ID or password.
- CONTENT PROVIDED BY SP. SP shall provide OCM with SP’s name, and text, videos and images about and describing SP (“Biographical Information”) and copies of all trademarks and service marks of SP (“Marks”) in the format that SP wishes to have displayed on the Services. Biographical Information shall not contain any information, videos or depictions of any persons except SP. SP warrants that such Biographical Information will be true, accurate and current and SP agrees to maintain and promptly update any such Biographical Information to keep it accurate. OCM may provide questions (which may be from other users or from OCM directly) about the EB-5 Visa Pilot Program to SP and SP may provide answers to such questions (“Answers”). The term “Answers” referred to herein shall also be defined as any and all content provided from SP including but not limited to blogs, articles, research papers, and any and all content for the Services, except for the Biographical Information. OCM is not obligated to post any such Answers and reserves the right not to post any such Answers.
- LICENSE, OWNERSHIP, RIGHTS OF PUBLICITY
- License Grants. SP hereby grants to OCM a perpetual, fully sub-licensable, transferable, irrevocable, world-wide, royalty free, non-exclusive license (the “License”) to:
- Ownership. SP agrees that any intellectual property or materials, including but not limited to Answers, questions, comments, suggestions, ideas, discoveries, plans, notes, drawings, original or creative materials, or other information, provided by SP in the form of e-mail or electronic submissions to OCM, or uploads or postings to the Services, or otherwise provided to OCM, as well as Modifications (“Submissions”), shall become the sole property of OCM to the fullest extent permitted by applicable law and will be considered “works made for hire” or “commissioned works” owned by OCM;
- Rights of Publicity Waiver and Use of Name and Likeness. Some of the Services are supported by advertising revenue and may display advertisements and promotions, and SP hereby agrees that OCM may place such advertising and promotions on the Services or on, about, or in conjunction with Biographical Information and Submissions. The manner, mode and extent of such advertising and promotions are subject to change without notice to SP. SP acknowledges that OCM may not always identify paid services, sponsored content, or commercial communications as such. SP irrevocably permits, authorizes and licenses OCM and their licensees, advertising agencies, promotion agencies and other third parties who are providing services for OCM related to the Services (“OCM Parties”) to display, broadcast and use SP’s name, likeness, and the text, videos and images provided as part of Biographical Information and as may be created as part of Modifications on the Services. To the fullest extent permitted by law, SP irrevocably waives all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages and expenses, whether now known or unknown, including but not limited to claims for copyright or trademark infringement, infringement of moral rights, defamation, invasion of rights of privacy and rights of publicity related to display of their name and likeness on Services and in conjunction with Answers. IF SP IS A CALIFORNIA RESIDENT, SP WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
- post or transmit any unlawful, fraudulent, indecent, libelous, defamatory, slanderous, obscene, pornographic, profane, threatening, abusive, hateful, offensive, harassing or otherwise objectionable or inflammatory material on the Services of any kind;
- post or transmit any material that furthers or promotes any criminal activity or enterprise, provides instructional information about illegal activities, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law, including, but not limited to, making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
- take actions to restrict or inhibit any other authorized user from accessing or using the Services;
- represent SP as another or as a fictitious individual;
- post or transmit any material which could be considered to discriminate on the grounds of age, nationality, race, religious beliefs, gender, or sexual orientation;
- upload or attach any material, files, or software subject to usage restrictions unless the SP owns, controls, or has the rights to upload or attach such material or has received all consents to upload or attach such material as may be required by applicable law (including, without limitation, laws governing intellectual property rights, privacy rights, or publicity rights);
- post or transmit “junk mail,” “chain letters,” or unsolicited mass mailing (i.e., “SPAM”);
- post or transmit photographs or videos of another person without that person’s consent;
- relay email from a third party’s mail servers without the permission of that third party; and
- upload or attach files that contain viruses, corrupted files or any other similar software or programs that may damage the operation of another’s computer.
- create derivative works (including without limitation, translations), modifications and re-formatted versions of Biographical Information (collectively “Modifications”);
- reproduce and distribute the Biographical Information, Modifications, Marks and the names and likenesses of SP as needed to publicly display the Biographical Information, Modifications, Marks and the names and likenesses of SP on the Services in or for any device, medium and format now existing or created in the future, in connection with the advertising, publicizing and marketing of SP on the Services, including SP sponsorship of any Services.
- To the extent that any Submission may not constitute a “work made for hire” or “commissioned work” owned by OCM under applicable law, SP hereby irrevocably assigns, and agrees to assign, to OCM all current and future right, title and interest in any and all such Submissions and SP will execute all documents and take all steps reasonably necessary to give effect to the ownership provisions contained in this Agreement; and
- OCM shall own exclusive rights, including any and all intellectual property rights, and shall be entitled to the unrestricted use of Submissions for any purpose, commercial or otherwise, without acknowledgment or additional compensation to you.
- In the event applicable law operates to prevent such assignment described above, or otherwise prevents OCM from becoming the sole owner of any such Submissions, SP agrees to grant to OCM, and this provision shall be effective as granting to OCM, (with unfettered rights of assignment) a perpetual, worldwide, paid-in-full, nonexclusive right (including any moral rights) and license to make, use, sell, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display the Submissions (in whole or in part) worldwide and or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in any such Submissions.
- By making Submissions, SP represents that (i) SP has full power and authority to make the assignment and license set forth above, (ii) the Submissions do not infringe the intellectual property rights of any third party, and (iii) OCM shall be free and have the right to use, assign, modify, edit, alter, adapt, distribute, dispose, promote, display, and transmit the Submissions, or reproduce them, in whole or in part, without compensation, notification, or additional consent from SP or from any third party.
i. Badge. All of OCM’s trademarks, logos, editorial content, web pages and other distinctive features are protected by applicable trademark, copyright and other intellectual property laws. By posting a badge labeled as “eb-5 verified”, SP is agreeing to the following terms: SP agrees to post a badge labeled as “eb-5 verified” conspicuously on the home page of SP’s website by inserting unmodified HTML source code as OCM shall from time to time provide. The badge may provide a link to the Services. SP shall only post the badge on SP’s website on as part of SP’s email signature. OCM reserves the right to remove the badge from SP’s website at any time without notice. SP shall not:
a) alter the HTML source code in any way;
b) change the aspect ratio or colors of the badge in any way;
c) remove, distort, or alter any element of the badge;
d) translate the badge or otherwise localize the badge into any other language (any translated versions of the badge must be provided by OCM);
e) display the badge as the most prominent or sole element on SP’s webpage;
f) display the badge in a way that can be reasonably interpreted to suggest editorial content has been authored by or represents the views or opinions of OCM or OCM personnel;
g) display the badge on any communications other than SP’s website or email signature;
h) use the badge to link to any other site than the intended OCM place page;
i) use the badge in any way other than as specified in this Agreement.
- Social media services. There may be links from the Services, or from communications SP receives from the Services, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Services. The Services also include third-party content that OCM does not control, maintain or endorse. Functionality on the Services may also permit interactions between the Services and a third-party web site or feature, including applications that connect the Services or SP’s profile on the Services with a third-party web site or feature (e.g., the Service may include a feature that enables SP to share content from the Services or SP’s content with a third party, which may be publicly posted on that third party’s service or application). Using this functionality often requires users to login to their account on the third-party service and SP does so at SP’s own risk. OCM does not control any of these third-party web services or any of their content. SP expressly acknowledges and agrees that OCM is in no way responsible or liable for any such third-party services or features. SP CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN SP AND THE THIRD PARTY. SP may choose, at SP’s sole and absolute discretion and risk, to use applications that connect the Services or SP’s profile on the Services with a third-party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to SP’s Service profile. By using such Applications, SP acknowledges and agrees to the following: (i) if SP uses an Application to share information, SP is consenting to information about SP’s profile on the Service being shared; (ii) SP’s use of an Application may cause personally identifying information to be publicly disclosed and/or associated with SP, even if OCM has not itself provided such information; and (iii) SP’s use of an Application is at SP’s own option and risk, and SP will hold OCM harmless for activity related to the Application. SP grants permission for OCM to take all action and store all data and information of SP needed to facilitate such distribution, publication or linking and SP agrees that OCM will have no liability or responsibility for any harm that may result if such data or information of SP becomes hacked, viewed or accessed in an unauthorized manner or if SP’s profiles on third-party web sites or features or Applications becomes altered or modified in an unauthorized manner. If SP wishes to share or post any Submissions other than via an associated link provided by the Services, SP must first receive written permission to do so from OCM, subject to the terms of this Agreement and any further terms provided in such written permission from OCM.
- INDEMNIFICATION. SP will indemnify, defend and hold harmless OCM and its officers, directors, employees, independent contractors, shareholders directors, agents and affiliates (collectively “OCM Affiliates”) from and against any and all losses, liabilities, suits, claims (including, without limitation, any copyright or intellectual property violations, tortious injury claims or defamation claims), allegations, obligations, costs, royalties, expenses (including but not limited to reasonable attorneys’ fees) brought by third parties against OCM Affiliates relating to or arising out of (i) any breach by SP of this Agreement; (ii) any materials, content or information provided by SP to OCM; (iii) any legal or other services provided or performed by the SP; (iv) any securities related activities by SP or its affiliates; or (v) the business of the SP. OCM reserves, and SP grant to OCM, the right to assume exclusive defense and control of any matter subject to indemnification by SP. All rights and duties of indemnification that are set forth herein shall survive termination of this Agreement.
- INFORMATION AND SERVICES PROVIDED BY SP. SP agrees to provide information requested by OCM as needed by OCM to present information about SP to Services viewers. Any engagements, representations or agreements to provide services entered into between SP and Services viewers is strictly between SP and Services viewers and SP acknowledges that OCM does not represent any Services viewers or SP in establishing any contractual or representation relationship between any Services viewer and SP. OCM does not guarantee the accuracy of any information that may be provided by a Services viewer to SP and SP acknowledges that SP is solely responsible for determining whether to enter into any representation of or agreement with any Services viewer. OCM does not guarantee the accuracy of any information or make any representations regarding any investment under the EB-5 visa pilot program or any entity connected in any manner with EB-5 visa related activities.
- REPRESENTATIONS AND WARRANTIES. SP represents and warrants the following: (a) The individual clicking on the link on SP’s email that states “I Claim My Profile and Agree” or similar button or control on behalf of SP has all rights and authority to bind the SP to the obligations in this Agreement; (b) SP has all rights necessary to fulfill its obligations under this Agreement without infringing or causing OCM to infringe any intellectual property rights; (c) Biographical Information will not contain any information or materials identifying specific individuals except for the SP; (d) SP will not engage in any unauthorized practice of law or malpractice of law, (e) SP does not have any felony convictions or criminal records; and (g) All materials and information provided by SP to OCM, including but not limited to Answers, are accurate and not misleading to consumers.
- LINKED WEBSITES. For SP’s benefit and convenience, certain hyperlinks may be provided on the Services which link to the websites of third parties that are not under the control of OCM. OCM is not responsible for, and disclaims all liability and makes no representations or warranties for, any products or services offered by such third parties, including through such websites, nor is OCM responsible for the availability, accuracy, content or any other aspect of such websites. OCM is not responsible for the privacy statements or practices of websites or services controlled by other companies or organizations. SP’s use of other websites, and the offer or purchase of products or services from such third parties, or on or through such other websites, is subject to the terms and conditions and privacy policies thereof. SP agrees that SP will bring no suit or claim against OCM arising from or based on SP’s use of, or the offer or purchase of products or services on or through, such other websites.
- ACCESS OF SERVICES. OCM reserves the right to refuse access to the Services to anyone for any reason at any time. OCM reserves the right to modify or terminate the Services for any reason or for no reason whatsoever, at any time. SP agrees that OCM may, without penalty, cease or modify the display of any information or materials about or from SP.
- RELATIONSHIP OF THE PARTIES. OCM and SP are independent contractors and nothing in this Agreement shall be construed to constitute the Parties as principal and agent, employer or employee, joint ventures, co-owners, or otherwise as participants in any form of joint undertaking.
- NOTICES. Any notice or communication required or permitted to be given hereunder may be e-mailed. If to OCM, notice via email must be emailed to email@example.com. If to SP, notice via email must be emailed to the email address provided by SP when SP provided information to OCM as part of SP’s registration process.
- LIMITATIONS OF LIABILITIES. THE SERVICES ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. OCM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED HEREUNDER. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OCM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT. OCM DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SERVICES, SERVICES CONTENT, LINKED THIRD PARTY SERVICES, SOFTWARE, OR SERVER WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, SERVICES CONTENT, LINKED THIRD PARTY SERVICES, THE SERVER THAT MAKES THEM AVAILABLE, OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES, SERVICES CONTENT, LINKED THIRD PARTY SERVICES, SOFTWARE OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OR PRIVACY OR PUBLICITY RIGHTS OF ANY PERSON. OCM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE SERVICES CONTENT, LINKED THIRD PARTY SERVICESS, THE SERVICES OR THE SOFTWARE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE. OCM DOES NOT GUARANTEE A CERTAIN NUMBER OF INQUIRIES, PHONE CALLS, WEB VISITS OR EMAILS TO THE SP OR ANY INCREASE IN BUSINESS ACTIVITY FOR SP. IN NO EVENT SHALL OCM, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS, BE LIABLE TO SP OR ANY THIRD PARTY FOR ANY LOSS, COST, DAMAGE OR INJURY (COLLECTIVELY, “DAMAGES”), WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, COMMERCIAL OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES, EVEN IF OCM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCM NOR ITS AGENTS OR EMPLOYEES SHALL BE HELD LIABLE FOR THE CONTENTS OF THE SERVICES INCLUDING WITHOUT LIMITATION ANY INACCURACY, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, ALTERATION OF OR USE OF ANY CONTENT HEREIN, OR FOR ITS TIMELINENESS OR COMPLETENESS, NOR SHALL THEY BE LIABLE FOR ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS OR COMMUNICATION LINE FAILURE, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. OCM’SAGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR THE SERVICES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO SP. IN SUCH CASES, OCM’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- WEBSITE USER CONTACTS. OCM reserves the right to contact Services users. For example, should a Website user request to be put in contact with a professional, and such request is provided to SP, OCM reserves the right to follow-up such Website user. As a courtesy to the SP, OCM generally allows 24 hours to elapse before following-up with users who have contacted SP via the Services.
- ASSIGNABILITY. OCM may assign this Agreement or any rights hereunder, without the consent of SP. SP shall not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of OCM. Any purported assignment or delegation by SP without the appropriate prior written consent of OCM will be null and void.
- DISPUTE RESOLUTION.
- General: If a dispute arises between SP and OCM, OCM’s goal is to provide SP with a neutral and cost effective means of resolving the dispute quickly. Accordingly, the Parties will resolve any claim or controversy at law or equity that arises out of this Agreement or OCM’s services under the Agreement in accordance with one of the subsections below or as the Parties otherwise agree in writing. Before resorting to these alternatives, OCM strongly encourages SP to first contact OCM directly to seek a resolution. OCM will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section XI(b) below, the Parties agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section XVI (Dispute Resolution), and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
- Exclusions from Arbitration. THE PARTIES AGREE THAT ANY CLAIM FILED IN SMALL CLAIMS COURT AND BY OCM TO PROTECT ITS INTELLECTUAL PROPERTY RIGHTS ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION XVI (DISPUTE RESOLUTION).
- RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF SP DOES NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION XVI (DISPUTE RESOLUTION), SP MUST NOTIFY OCM IN WRITING WITHIN 30 DAYS OF THE EFFECTIVE DATE. SP’S WRITTEN NOTIFICATION MUST BE MAILED TO EB5INVESTORS.COM TERMS ADMINISTRATOR, OUTCLICK MEDIA, 96 DISCOVERY, IRVINE, CA 92618 AND MUST INCLUDE: (1) SP’S NAME, (2) SP’S ADDRESS AND (3) A CLEAR STATEMENT THAT SP’S DOES NOT WISH TO RESOLVE DISPUTES WITH OCM THROUGH ARBITRATION.
- Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS THE PARTIES SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
- Initiation of Arbitration Proceeding/Selection of Arbitrator. If a Party elects to resolve a dispute through arbitration, the Party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section XVI (Dispute Resolution) govern in the event they conflict with the rules of the arbitration organization selected by the parties.
- Arbitration Procedures. Because the services provided to SP concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if SP’s claims do not exceed $75,000 and SP provided notice to and negotiated in good faith with OCM as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to OCM or SP. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the Parties for purposes of enforcement.
- Location of Arbitration. The place of arbitration shall be Orange County, California. The language to be used in the arbitral proceedings will be English.
- Severability. If any clause within this Section XVI (Dispute Resolution) (other than the Class Action Waiver clause of Section XVI(d)) is found to be illegal or unenforceable, that clause will be severed from this Section XVI(d) and the remainder of this Section XVI will be given full force and effect. If the Class Action Waiver (Section XVI (d)) clause is found to be illegal or unenforceable, this entire Section XVI will be unenforceable, and the dispute will be decided by a court.
- GOVERNING LAW AND VENUE. This Agreement is governed by California law except for its conflict of law provisions. The parties agree that the exclusive legal venue for all disputes related to this Agreement not resolved by arbitration in accordance with Section XVI (Dispute Resolution) above are the federal or state courts in Orange County, California and both parties consent to personal jurisdiction in any such dispute brought in federal or state court in Orange County, California.
- MISCELLANEOUS. This Agreement will be governed by and construed in accordance with the laws of California, without regard to its conflict of laws provisions. This Agreement may not be amended, canceled or waived, in whole or in part, except by written instruments signed by the Parties. This Agreement constitutes the entire agreement and understanding between the Parties and integrates all prior discussions between them related to its subject matter. No modification of any of the terms of this Agreement shall be valid unless agreed to in writing by an authorized representative of each party.
Update Date: This Agreement was updated on August 17, 2016.