Terms of Service

Last revised: June 1, 2020

 

These Terms of Service govern your use of the this website and the software and services made available there as provided by Opencomp (“OpenComp,” “we,” “our,” or “us”) , as well as any other websites, subdomains, or services owned or controlled by OpenComp and offered herein (individually, “Service” and, collectively, the “Services”), including its various Service Plans (“Service Plans”). To access the Services, users must at all times agree to and abide by these Terms. The Service allows you to submit, store, and access certain business data and other information related to you, your customers, or your OpenComp or clients, and the workforce of such OpenComp or companies (collectively, “User Data”) in order for OpenComp to provide the Services.

This Terms of Service for the Services is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single company, organization, or entity (“you” or, collectively with other users, “Users”) and OpenComp regarding your use of the Service. OpenComp may have different roles with respect to different types of Users, and “you” as used in these Terms will apply to the appropriate type of User under the circumstances.

Please read carefully the following terms of service. By registering for and/or accessing, browsing, using or subscribing to the Service, or by clicking “I Agree,” or otherwise affirmatively manifesting your intent to be bound by these Terms of Service, you signify that you have read, understood, and agree to be bound by the following terms, including any additional guidelines and any future modifications (collectively, the “Terms”), and to the collection and use of your User Data as set forth in the OpenComp Privacy Policy.

If you are using or opening an account with OpenComp on behalf of a OpenComp, entity, or organization (collectively, the “Subscribing Organization”) then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to these Terms; (ii) have read these Terms; (iii) understand these Terms, and (iv) agree to these Terms on behalf of such Subscribing Organization.

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

 

1. License Grant

 

Subject to the terms and conditions of these Terms, OpenComp hereby grants to you a limited, personal, non-transferable license to use the Services in the manner contemplated by these Terms solely for your internal business purposes. Users shall have no right to sub-license or resell the Services or any component thereof.

2. Privacy

 

User privacy is important to us. Please read our Privacy Policy carefully for details relating to the collection, use, and disclosure of your personal information.

3. Individual Features and Services

 

Certain features of the Service (“Individual Services”) may have their own terms and conditions that you must agree to when you sign up for that particular product, function, or service (each an “Individual Service Agreement”). An Individual Service Agreement supplements these Terms and is hereby incorporated by reference. If any term of these Terms expressly conflicts with any term of an Individual Service Agreement, the conflicting term in the Individual Service Agreement will control. All other terms and conditions of each agreement will remain in full force and effect. Further, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.

4. Modification of the Terms

 

OpenComp reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms and any Guidelines periodically for changes. When we change the Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. If any such revision is unacceptable to you, your only remedy is to terminate your User Account.

5. Account Activity Responsibility

 

5.1 User Accounts

 

In order to use or receive certain aspects of the Services and order Service Plan Subscription(s), you will have to register for the Services and create an OpenComp account (“User Account” or “Account”). Some Services may be subject to additional terms and conditions (“Service Terms”), which Users agree to at the time of ordering such Services (“Services” and “Service Terms” collectively referred to herein as “Services”). To sign up for an Account, User must provide certain information to enable OpenComp to provide the Services. User hereby represents and warrants that the Account information provided is accurate and will be updated as needed. User hereby authorizes OpenComp to store, process, and use the Account information as necessary to provide Services. When creating your account for the Services, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify OpenComp. You may be liable for the losses incurred by OpenComp or others due to any unauthorized use of your User Account.

 

5.2 Administrator Accounts

 

The person who first completes the Services registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use of the Service, and exercises certain options to initially determine the level of access, privacy, and security for the Service related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be a User of the Services under the organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators. Each Administrator may designate other Users as additional and/or successor Administrators, and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the Services billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to User Accounts.

 

5.3 System Access

 

You may choose to allow OpenComp to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow OpenComp to so automatically access such system(s) and services and you hereby grant OpenComp permission to access such system(s) and services and retrieve User Data therefrom by indicating the same within your User Account. OpenComp disclaims any and all liability associated with accessing and retrieving User Data from such system(s) and services on your or your Subscribing Organization’s behalf. In order to connect the Services with any third-party service, you hereby authorize us to: (a) store your User Data relating to such service; (b) access such service using User Data you provide us; (c) use any materials you provide us in order to provide you the Service; (d) gather and export from such service any User Data reasonably necessary for us to provide the Services to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide the Services to you. You agree that those third-party service providers are entitled to rely on the foregoing authorization granted by you. If at any time you do NOT HAVE THE RIGHT AND AUTHORITY TO ALLOW OPENCOMP AUTOMATIC ACCESS TO SUCH SYSTEM(S), THEN YOU HEREBY AGREE TO IMMEDIATELY DISABLE SUCH FUNCTIONALITY WITHIN YOUR USER OR ADMINISTRATOR ACCOUNT.

 

5.4 Account Information

 

You acknowledge and agree that 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: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of OpenComp, its users, or the public.

 

6. Payment Terms; Charges and Taxes; Term and Termination


6.1 Though part of our Services may be available to you without charge, some aspects of our Services may require your payment of applicable fees. Please review our OpenComp Fee Schedule to identify applicable fees in connection with your use of the Services. You are responsible for paying any applicable fees as set forth on our OpenComp Fee Schedule and applicable taxes associated with the Service in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by the methods specified within the Service. You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify OpenComp if your selected payment method is cancelled (e.g., for loss or theft). All fees and charges are earned upon receipt by us and are nonrefundable (and there are no credits) except (a) as expressly set forth herein, and/or (b) as required by applicable law.

6.2 You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your use of the Services, including, but not limited to, sales, use, or value-added taxes. To the extent OpenComp is obligated to collect such taxes, the applicable tax will be added to your billing account.

6.3 Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Service; provided, however, that such notice will not affect charges submitted before OpenComp could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service or on the OpenComp Fee Schedule. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.

6.4 OpenComp reserves the right to change the amount of, or basis for determining, any fees or charges for the Services we provide, and to institute new fees, charges, or terms effective upon prior notice to our Users. You will receive notice of any fee change at least five (5) days before the scheduled date of the transaction and failure to cancel your account as set forth herein will constitute acceptance of such fee change. Any changes to fees will apply only on a prospective basis. If you do not agree to any such changes to fees, charges, or terms, your sole remedy is to cancel your subscription. Fees paid for any subscription term are paid in advance and are not refundable in whole or in part. If you have a balance due on any Service account, you agree that OpenComp can charge these unpaid fees to any payment method that you have previously provided.

6.5 Term and Termination. These Terms will remain in effect until either party terminates all Services. User may terminate its access to Services, which terminates these Terms, at any time with written notice to OpenComp. Such termination will be effective at the end of the period for which User has paid for Services. OpenComp may terminate User’s access to Services, which terminates these Terms, for any or no reason by providing notice to User (including via email or through the Service) at least thirty (30) days prior to the end of the period for which User has paid for Services. In addition, OpenComp may immediately suspend or restrict User’s access to Services, or immediately terminate these Terms of Service and User’s access to Services for cause, in each case with or without notice to User, if: (a) OpenComp believes that User has breached these Terms; (b) OpenComp determines that User’s actions have caused or are likely to cause liability or other material negative effects for OpenComp, its affiliates, or other OpenComp customers; (c) OpenComp believes that User has engaged in any fraudulent or deceptive practices or activities that fail to comply with applicable laws; (d) User has failed to pay fees when due and has not cured such non-payment within five (5) days of OpenComp’s providing notice of the non-payment; or (e) User goes out of business, or enters into voluntary or involuntary bankruptcy or receivership proceedings. User is entitled to no refunds as a result of a suspension, restriction, or termination pursuant to this section.

 

7. Restrictions

 

When using any of the Services, you agree not to:


7.1 Upload or transmit via any of the Services pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;

 

7.2 Use any of the Services for any purpose that is unlawful or is otherwise prohibited by these Terms;

 

7.3 Use any of the Services in any manner that in our sole discretion could damage, disable, overburden, or impair it;

 

7.4 Attempt to gain unauthorized access to the Services, or any part of them, other User Accounts, computer systems or networks connected to the Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Services;

 

7.5 Modify any Service in any manner or form, or use modified versions of the Services, including but not limited to for the purpose of obtaining unauthorized access to any of the Service;

 

7.6 Use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to any of the Services;

 

7.7 Impersonate another person or access another User’s User Account without that User’s permission or to violate any contractual or fiduciary relationships;

 

7.8 Share OpenComp-issued passwords with any third party or encourage any other User to do so;

 

7.9 Misrepresent the source, identity, or content of User Data;


7.10 Modify, adapt, translate or create derivative works based upon any of the Services;

 

7.11 Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any of the Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

 

7.12 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;

 

7.13 Remove, circumvent, disable, damage or otherwise interfere with security-related features of any of the Services, features that prevent or restrict use or copying of any content accessible through any of the Services, or features that enforce limitations on use of any of the Services;

 

7.14 Access the Services if you are a direct competitor of OpenComp, except with OpenComp’s prior written consent, or for any other competitive purposes; or

 

7.15 Collect or harvest any personally identifiable information, including account names, from the Services.

 

8. User Data.


8.1 Personal Information. User Data may contain personal information (or personal data) as defined by applicable law (“Personal Information”). OpenComp’s privacy policy describes its privacy practices with respect to Personal Information collected for the business purposes of providing the Services. User represents and warrants to OpenComp that: (a) all User Data are accurate and complete, (b) User has all necessary rights and authority to share the User Data with OpenComp for the purposes described in these Terms, in the Privacy Policy, and any other applicable Service Terms, and (c) User has complied with all applicable laws in providing User Data, including, without limitation, by providing any required notices, procuring any necessary consents from individuals or entities whose information is included in User Data, and/or otherwise demonstrating User’s ability to provide the User Data in a manner that complies with applicable laws. As a convenience to User, the Services may sometimes pre-fill certain User Data from third-party services; however, User remains responsible for reviewing and verifying that any such information is accurate and complete. User will promptly notify OpenComp if it learns that any User Data are inaccurate or incomplete.

 

8.2 Use of User Data. 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 without limitation, features of the Services that enable you to share certain User Data with third parties through our Service. If OpenComp shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from User Data, such data will be aggregated or de-identified to reasonably avoid identification of a specific individual or the User. 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. In addition, by providing any User Data to the Services, User authorizes OpenComp to store, process, and use such User Data: (1) to provide Services for User, and (2) to create de-identified data by removing all references to Personal Information (“De-identified Data”).

 

8.3 Your Responsibilities for User Data. In connection with User Data, you hereby represent, warrant, and agree that: (a) you have obtained the User Data lawfully, and the User Data does not and will not violate any applicable laws or any person or entity’s proprietary or intellectual property rights; (b) the User Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by OpenComp or its subcontractors to provide the Service; (c) all User Data has and will be collected by you in accordance with a privacy policy that permits OpenComp to share, collect, use, and disclose such User Data as contemplated under these Terms (including without limitation, by enabling you to share certain User Data with third parties through the Service), and if required by applicable law, pursuant to consents obtained by you to do each of the foregoing; (d) you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to User Data provided hereunder; (e) OpenComp may exercise the rights in User Data granted hereunder without liability or cost to any third party; and (f) the User Data complies with the terms of these Terms. For purposes of clarity, 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.

 

8.4 Security Incidents. In the event that User Data is disclosed to or accessed by an unauthorized party, OpenComp will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident.

 

8.5 No Responsibility for Backups. OpenComp will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. You are solely responsible for backing up your User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data.

 

9. Intellectual Property Rights.

 

9.1 User Data. As between User and OpenComp, User owns all rights in and to the 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 the OpenComp to remove from the OpenComp’s systems any User Data consisting of personally identifiable information and following the receipt of such request, 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.

 

9.2 Services and Service Output. 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, and all other elements of the Services provided by OpenComp, but expressly excluding any of the foregoing owned or licensed by and posted to the Services at the direction of Users (including without limitation User Data) (“Materials”) are protected by intellectual property and other applicable laws. Except for any technology licensed by OpenComp, which is owned by and provided by our third-party licensors, 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. All trademarks, service marks, and trade names are proprietary to OpenComp or its affiliates and/or third-party licensors. Except as expressly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Materials or the intellectual property rights therein or thereto, 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.

You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place OpenComp under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea 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.

As between User and OpenCom, 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. Services and Service Output are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. OpenComp retains all rights in and to the Services and Service Output except for the rights expressly granted to User under these Terms of Service.

 

9.3 License to Service Output. OpenComp grants User a limited, non-transferable, non-sublicensable license to use and reproduce the Service Output for User’s internal business purposes. User may not disclose the Service Output, its Account credentials, or any information learned from the Services to any third party, except for User contractors who are subject to appropriate written agreements and bound to confidentiality obligations. User is responsible and liable for such contractors’ compliance with these Terms of Service. 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.


9.4 License to De-Identified Data. User grants, 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.


9.5 Trademarks. 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. User must not use such marks or any marks that are confusingly similar without the prior written permission of OpenComp.

 

10. Confidentiality and Data Protection.

 

10.1 Confidential Information. In connection with the Services, each party (as “Recipient” may receive or learn information from the other party (as “Discloser”) that is not generally known to the public or in the relevant trade or industry ("Confidential Information"). Customer’s Confidential Information includes, without limitation, its User Data and any other information disclosed to OpenComp in connection with the Services about User’s business or employees. OpenComp’s Confidential Information includes, without limitation, the Service Output and any market data, reports, and analyses provided by OpenComp 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.


10.2 Data Protection. OpenComp will use commercially reasonable efforts to safeguard and protect User Data from unauthorized access or disclosure in a manner consistent with industry standards and applicable law.


10.3 Data Protection Addendum. The OpenComp-Client Data Processing Addendum (“OpenComp-Client DPA”), which is attached as Attachment 1 to the Terms defines the parties' obligations with respect to the processing of Personal Information relating to data subjects in the European Economic Area. The DPA includes the Standard Contractual Clauses.

 

11. Third-Party Sites, Third-Party Information

 

The Services may call the servers of other websites or services solely at the direction of and as a convenience to Users (“Third Party Sites”). OpenComp makes no express or implied warranties with regard to the information, or other material, products, or services that are contained on or accessible through Third-Party Sites. Access and use of Third Party Sites, including the information, material, products, and services on such sites or available through such sites, is solely at your own risk.

 

12. Security and Privacy Settings

 

We have implemented commercially reasonable technical and organizational measures designed to secure your User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Data for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide Personal Data or other sensitive information in order to use the Service and that you provide any such information at your own risk.

 

13. Disclaimers; No Warranties

 

13.1 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.

 

13.2 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.

 

13.3 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.

 

13.4 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.

 

14. Limitation of Liability

 

14.1 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.

 

14.2 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.

 

14.3 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.

 

15. 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.

 

16. Location of the Service.

 

The Services are controlled and operated from our facilities in the United States. OpenComp makes no representations that the Services are appropriate or available for use in other locations. Those who access or use any of the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. 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.

 

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

 

17.1 Governing Law. You agree that: (a) the Service shall be deemed solely based in California; and (b) the Service shall be deemed a passive one that 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 Santa Clara County, 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 Santa Clara County, 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.

 

17.2 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 info@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.

 

17.3 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.

 

18. Miscellaneous

 

18.1 Notice and Modifications. OpenComp may provide you with notices, including those regarding changes to OpenComp’s terms and conditions, by email, regular mail, or postings on the Service. Notice will be deemed given twenty-four hours after email is sent, unless OpenComp is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through any of the the Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Services is deemed given five (5) days following the initial posting. OpenComp reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. OpenComp is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. OpenComp may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to the Agreement. Your continued use of the Services after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Services.

 

18.2 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.

 

18.3 Severability. If any provision of these Terms, an Individual Service Agreement, or any Guideline 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.

 

18.4 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.

 

18.5 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 and 8 through 18.

 

18.6 Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

 

18.7 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.

 

18.8 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.

 

18.9 Disclosures. The Service is offered by OpenComp LLC located at , 251 Post Street, San Francisco, CA 94117 and can be reached via email at info@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.