Terms of Service

Last revised: October 4, 2021

 

Welcome to OpenComp. This is an agreement between you and OpenComp, LLC (“OpenComp”, “we”, or “us”). We provide strategic human resources and compensation software and services. These Terms govern your use of our software, services, website, tools, and apps (our “Services”) and your purchases from us. By registering for, accessing, purchasing, or subscribing to the Services, or by executing an agreement that references these Terms, you signify that you have read, understood, and agree to be bound by the following terms and any future modifications to them (collectively, the “Terms”).

BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

If you are using the Services on behalf of a company, entity, or organization (a “Company”), these Terms bind the Company and those who work for the Company, and “you” in this agreement references Company. If you personally open an account for a Company, you represent that you have authority to bind the Company to these Terms. If you don’t agree to these Terms or you don’t have authority, you may not use the Services.

 

1.Services and License

 

  1. You can order Services, such as a subscription to OpenComp’s software platform, by signing up online or executing an order document. Subject to compliance with these Terms, OpenComp hereby grants to you a limited, personal, non-transferable license to access and use the Services as contemplated by these Terms solely for your internal business purposes during the Term. You cannot sub-license or resell the Services; they are for you only. Service subscriptions start on the date you complete your initial payment and continue for the subscription term selected; or, some services may have a start date and be for a duration that we agree on (in each case, the time period you have an active order with us, is the “Term”).

  2. Certain Services may have their own terms. We’ll present you such individual service agreements when you sign up, and they are incorporated by reference to these Terms. If an individual service agreement conflicts with these Terms, the conflicting portion of the individual service agreement will control on that portion; otherwise, these Terms control. We may also post or update guidelines applicable to specific services and features or our Services overall. Those Guidelines are part of these Terms, and you agree to them here.

  3. OpenComp may from time to time (but is not required to) improve, modify, or update our Services such as by launching new features, fixing bugs, or updating the product (“Updates”). In some cases, Updates will be considered a new service, and in others they are considered part of the original purchased Services. We will use commercially reasonable efforts to notify you in advance of Updates that result in material changes to the Services and have no obligation to keep providing all or any particular features of the Services. You agree that your purchases do not depend on our development or delivery of any future functionality or features not in a Work Order or explicitly part of an agreed-upon Service Output.

 

2. Professional Services

 

  1. OpenComp may offer professional services, like compensation consulting. Such services are Services under these Terms. For professional services, we provide a Work Order or Statement of Work that describes, for example, the scope of work, fees, payment schedule, and timeline. Once executed, the Work Order binds both you and OpenComp, and services provided under that Work Order would be governed both by that Work Order and these Terms.

  2. We control how we provide professional services, such as by selecting the team. We may use subcontractors (but we remain responsible for their work). In all cases, you and OpenComp have an independent contractor relationship.

  3. If either you or OpenComp requests a change to an agreement for professional services, those changes take effect only when we sign a mutually agreed change order. If delay, postponement, or other action or failure to act by you (for example, non-availability of designated resources) prevents us from completing a contracted project, we may suspend performance of professional services and will not be liable for the non-delivery or untimely delivery or provision of Services.

 

3. Fees & Payment

 

  1. Our Services may be priced in different ways, such as per employee or per user for a time period, and may be payable in advance, in arrears, per usage, or as otherwise described when you order. Pricing will be available within the Services as you sign up, or, for some Services may be quoted to you for a set project. We may offer free or trial versions of some of our Services. We reserve the right, in our sole discretion, to determine eligibility for free services and our pricing overall including tiers or our basis for charges. We can change our pricing and remove our free services at any time without prior notice and with no liability, to the greatest extent permitted under law. You will receive notice of any fee change at least thirty (30) days before the scheduled date of the transaction and failure to cancel your account means you accept such fee change. 

  2. You are responsible for timely paying fees with a valid electronic payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. You agree that we may charge your selected payment method, and authorization remains in effect until you cancel or modify your payment preferences within the Service. If your Order Form provides that we agree to issue invoices to you, payment of all invoices is due within 30 days of the date of invoice. If you have a dispute about fees invoices you must raise that dispute within 14 days or it is waived.

  3. If you are past due, we may collect fees or deactivate your account. You are responsible for any taxes imposed on your use of the Services, including, but not limited to, sales, use, or value-added taxes. If OpenComp is obligated to collect such taxes, they will be added to your billing account.

  4. All fees and charges are earned upon receipt by us and based on services purchased regardless of the amount of actual usage and are nonrefundable (and there are no credits) except (a) as expressly set forth herein, and/or (b) as required by applicable law.  Where pricing is based on a number of records or users per month, you will be charged at your monthly billing anniversary for the maximum number of records inputted that billing month, or may be trued up depending on use.

 

4. Privacy and Security

 

  1. Some of our Services require input or transfer to us of your information, such as about Company employees and their compensation (“User Data”). You agree and consent to the use, transfer, processing, and storage of User Data in accordance with these Terms and with our Privacy Policy.

  2. Both you and OpenComp represent that our respective performance under this Agreement is compliant with applicable data privacy laws including GDPR and CCPA. When providing Services, OpenComp is a “Service Provider” under the California Consumer Privacy Act (CCPA) and any similar laws. Our use, retention, and/or disclosure of personal information is for the sole business purpose of performing the Services, or as otherwise permitted by the CCPA.

  3. If you or your employees are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be considered the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC). If you request, we may execute European Union Standard Contractual Clauses and a Data Processing Addendum (DPA) available online at https://www.opencomp.com/gdpr. For clarity, OpenComp is not a data controller with respect to data you provide under any relevant law or regulation.

  4. We use commercially reasonable and industry-standard security technical and organizational practices and safeguards. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures, and you provide User Data to us at your own risk. If User Data is disclosed to or accessed by an unauthorized party, OpenComp will promptly notify you and use reasonable efforts to assist. OpenComp is not intended as a backup for User Data, and OpenComp is not responsible for its recovery in the event of a loss.

 

5. Accounts

 

  1. Certain Services require registering and creating an OpenComp account. You accept responsibility for activities that occur under your account, and you must immediately tell us if you believe your account is no longer secure. The person who registers on behalf of any Company is the initial administrator and determines initial access, privacy, and security (e.g. privilege levels) for the Services within the Company. In addition, OpenComp can assume any person designated as billing contact is an administrator.

  2. OpenComp may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with law, enforce these Terms or investigate claims of third parties, or protect the rights, property or personal safety of OpenComp, our users, or the public.

 

6. Term and Termination; Renewal


  1.  These Terms will remain in effect until either party terminates all Services. To terminate these Terms, you may terminate your account and access to online Services at any time with written notice to us. Such termination takes effect at the end of the period for which you have paid.

  2. We may terminate your access to Services, which terminates these Terms, for any or no reason by providing notice to you at least thirty (30) days prior to the end of the paid period. In addition, OpenComp may immediately terminate these Terms and/or your access to Services, without notice, if we believe: (a) you’ve breached these Terms; (b) your actions have caused or are likely to cause liability or other material negative effects for OpenComp or others; or (c) you’ve failed to pay fees when due and not cured such non-payment within five (5) days of notice of the non-payment; or (d) you go out of business or enter bankruptcy proceedings. No refunds are available for suspension or termination pursuant to this section.

  3. Services offered as a subscription will automatically renew at the end of each Term unless you cancel by providing us written notice before the end of the Term. Renewal will be at the then-current pricing for the applicable Service and may differ from the pricing you paid in the prior Term.

 

7. Integrations

 

  1. OpenComp works with several HR tools and other software. You may choose to allow OpenComp to automatically retrieve data from your or third-party systems or services for you (“integrations”). You hereby represent and warrant that you have the permission, authority, and rights for such integrations, and hereby grant OpenComp permission for integrations where you link your or third-party systems in your user account or through such tools as we may provide.

  2. OpenComp disclaims liability associated with providing to you, accessing, and retrieving data or information from such system(s) and services on your behalf. When you connect your systems, tools, or accounts for integrations, you authorize us to: (i) store and use any data and use any materials we need to do the integration and provide you the Service, (ii) gather any data reasonably necessary for us to provide the Services to you; and (iii) otherwise take any action in connection with such service as is reasonably necessary for us to provide the Services to you. You agree that third-party service providers are entitled to rely on the foregoing authorization you have granted. If at any time you do not have the right and authority to allow OpenComp automatic access to such system(s), you hereby agree to immediately disable such integrations from within your account.

 

8. Service Rules

 

You agree not to:

  • Upload inappropriate content to the Services; 
  • Use any of the Services for any unlawful purpose or as prohibited by these Terms;
  • Damage, disable, overburden, interfere with, or impair the Services;
  • Attempt to gain unauthorized access to the Services or other users’ accounts; 
  • Game or attempt to game our Services for any reason including to receive lower pricing, for example by swapping out employee records within the Services, impersonating others, or sharing passwords or encouraging others to share theirs;
  • Use any robot or other automated means to access the Service without our express written permission, or bypass any access or security measures; 
  • Submit knowingly false data, or misrepresent the source, identity, or content of data;
  • Modify, adapt, translate or create derivative works based upon any of the Services;
  • Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services, except to the extent expressly permitted by applicable law notwithstanding this limitation;
  • Rent, lease, loan, resell, sublicense, distribute or otherwise transfer any of the Services to any third party; provide time sharing or similar services for any third party; or use the Services for any purpose other than your own internal business use; 
  • Access the Services if you are a direct competitor of OpenComp, except with OpenComp’s prior written consent, or for any other competitive purposes;
  • Collect personally identifiable information from the Services;
  • Introduce software, User Data, or any mechanism that contains viruses, Trojan horses, or any other elements that could interrupt or harm our systems or software; 
  • Scrape, crawl, or through manual or automated means pull data or content from the Services in any aggregated or collected manner; or
  • Distribute or disclose any part of the Services in any medium outside of your internal business use.

 

9. User Data; De-identified Data

 

  1. You represent and warrant to OpenComp that User Data you provide is accurate complete and lawfully obtained under an appropriate privacy policy, and that you have all rights and authority to share the User Data with OpenComp for the purposes described in these Terms and the OpenComp Privacy Policy. By submitting User Data to OpenComp, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Data required for OpenComp and its subcontractors and service providers to provide the Services, including features that enable sharing certain User Data with third parties. OpenComp takes no responsibility and assumes no liability for any User Data, and you will be solely responsible for its User Data and the consequences of sharing it hereunder.

  2. OpenComp may aggregate or de-identify User Data to avoid identification of you or a specific individual, and has the perpetual right to use, share, or publicly disclose that derived information. You further agree that OpenComp will have the right, both during and after the term of these Terms, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the de-identified, aggregated data. You specifically authorize OpenComp to store, process, and use your User Data: (1) to provide Services to you, and (2) to create de-identified data by removing all references to Personal Information (“De-identified Data”). You grant, now and in the future, to OpenComp a perpetual, irrevocable, nonexclusive, sublicensable, worldwide, royalty free and fully paid up license to create and exploit in any manner De-Identified Data.

  3. You own all rights in and to your User Data, subject to the limited rights granted to OpenComp under these Terms. Following your use of the Services, you may submit a written request to OpenComp to remove from OpenComp’s systems any User Data consisting of personally identifiable information and OpenComp shall promptly delete any such personally identifiable information from its systems. OpenComp shall provide to you a copy of your User Data promptly following your written request for such User Data.

 

10. Intellectual Property; Trademarks


  1. OpenComp and its licensors own all intellectual and proprietary rights in and to the Services, including but not limited to the software, systems, content, images, video and audio, and the design, selection, and arrangement thereof. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, trademarks, trade names, and all other elements of the Services provided by OpenComp (the “Materials”), but expressly excluding any of the foregoing owned or licensed by and posted to the Services at your direction (including without limitation User Data) are protected by intellectual property and other applicable laws. All Materials contained in the Service, including without limitation the intellectual property rights therein and thereto are the property of OpenComp or its subsidiaries or affiliated companies or its licensors. Except as expressly provided herein, these Terms do not create a license to or under the Materials. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.

  2. If you submit comments or ideas about the Services to us, we are free to use them without any additional compensation to you, and/or to disclose them on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, OpenComp does not waive any rights to use similar or related ideas previously known to OpenComp, or developed by its employees, or obtained from sources other than you.

  3. Any reports, analyses, processes, know-how, benchmark data, techniques, discoveries, or other works of authorship that are conceived, made, developed, fixed in a tangible form, reduced to practice, or learned by OpenComp in the course of performing Services (“Service Output”) are owned by OpenComp, and OpenComp reserves all rights in the Services and Service Output except for the rights expressly granted to you under these Terms.

  4. OpenComp grants you a limited, non-transferable, non-sublicensable license to use and reproduce the Service Output for your internal business purposes during the Term. You may not disclose the Service Output, your Account credentials, or any information learned from the Services to any third party. Resale or republishing of any Service Output, data, or other information learned from the Services, or any modified version or derivative work thereof, is expressly prohibited.

  5. The OpenComp name, the OpenComp mark, and all related names, logos, product and service names, designs, and slogans are trademarks of OpenComp or its affiliates or licensors. You must not use such marks or any marks that are confusingly similar without the prior written permission of OpenComp.

 

11. Confidential Information

 

In connection with the Services, each party (as “Recipient”) may receive or learn information from the other party (as “Discloser”) not generally known to the public or in the relevant trade or industry ("Confidential Information"). Your Confidential Information may include, without limitation, User Data and other information you disclose to OpenComp about your business. OpenComp’s Confidential Information includes the Service Output and any market data, reports, and analyses we provide in connection with the Services. Each party, as Recipient, agrees to hold all in strict confidence any Confidential Information of Discloser, not to disclose the Discloser’s Confidential Information to any third parties without prior authorization from Discloser, and not to use any Confidential Information for any purpose except those authorized by these Terms of Service or otherwise authorized in writing by Discloser.

 

12. Disclaimers; No Warranties

 

  1. THE SERVICE AND ANY THIRD-PARTY OR USER DATA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH ANY OF THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OPENCOMP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

  2. OPENCOMP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

  3. OPENCOMP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THIRD PARTY OR USER DATA, MATERIAL, OR DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH THIRD PARTY OR USER PROVIDED INFORMATION, MATERIAL, OR DATA. OPENCOMP WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY THIRD-PARTY OR USER DATA.

  4. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

12. Limitation of Liability

 

  1. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL OPENCOMP OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE INFORMATION OR MATERIALS ON THE SERVICE, OR ANY OTHER INTERACTIONS WITH OPENCOMP, EVEN IF OPENCOMP OR A OPENCOMP AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OPENCOMP’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 

  2. IN NO EVENT WILL OPENCOMP’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSOR’S, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

  3. YOU ACKNOWLEDGE AND AGREE THAT OPENCOMP HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND OPENCOMP.

 

14. Indemnification

 

You agree to defend, indemnify and hold harmless OpenComp and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Services, including any data or work transmitted or received by you; (b) your violation of any term of these Terms, including without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claim or damages that arise as a result of any of your User Data or any other data that are submitted via your account; or (f) any other party’s access and use of the Services with your unique username, password or other appropriate security code. OpenComp will have the right to control the defense, settlement, adjustment, or compromise of any such claims, actions or proceedings by using counsel selected by OpenComp. OpenComp will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.

 

15. Location of the Service

 

The Services are controlled and operated from the United States. OpenComp makes no representations that the Services are appropriate or available in other locations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the U.S. By using the Services, you are consenting to have your personal data transferred to and processed in the United States.

 

16. Governing Law; Arbitration; and Class Action/Jury Trial Waiver

 

  1. Governing Law.

    You agree that: (a) the Service shall be deemed solely based in California; and (b) the Service does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, California is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.

  2. Arbitration.

    READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM OPENCOMP. For any dispute with OpenComp, you agree to first contact us at legal@opencomp.com and attempt to resolve the dispute with us informally. In the unlikely event that OpenComp has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco, California unless you and OpenComp agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing OpenComp from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.

  3. Class Action/Jury Trial Waiver.

    WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OPENCOMP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

17. Miscellaneous

 

  1. Notice and Modifications. OpenComp may provide you with notices by email, regular mail, or postings on the Service. Notice will be deemed given twenty-four hours after email is sent; 3 days after mailing to a postal address; or 5 days following posting within the Service.

  2. Changes to the Terms. We may change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms periodically for changes. You will be notified of any material changes  to these Terms through our update to the ‘last modified’ date at the top of the page at www.opencomp.com/terms. If you do not accept any such revision, your only remedy is to terminate your account.

  3. Waiver. The failure of OpenComp to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by OpenComp.

  4. Severability. If any provision of these Terms or an individual service agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions; except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

  5. Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OpenComp without restriction.

  6. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 3-5 and 8-14, and 16-17.

  7. Entire Agreement. This, including the agreements incorporated by reference, constitutes the entire agreement between you and OpenComp relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by OpenComp as set forth in these Terms.

  8. Claims. YOU AND OPENCOMP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

  9. Disclosures. The Service is offered by OpenComp LLC located at , 251 Post Street, San Francisco, CA 94117 and can be reached via email at legal@opencomp.com. If you are a California resident, (a) you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information; and (b) in accordance with Cal. Civ. Code §1789.3, you may 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.