Terms and Conditions for Use of Services Agreement
Effective Date: April 5, 2018
Date of Most Recent Revision: April 4, 2018
The www.OpenCity.co website you are visiting is provided by OpenCity, Inc. (referred to hereinafter as “OpenCity” or “we” (including objective “us” and possessive “our”)). These Terms and Conditions for Use of Services Agreement (“Agreement”) constitute the Agreement between you, the end user (“User,” or “you,” including possessive “your,”), and OpenCity in regard to your use of the www.OpenCity.co website and all of its content and features (“Website”), our OpenCity Chat Manager App or other apps we have created, if any (“App(s)”), our texting, messaging, and multi-media communications network (“Network”), or any additional services which we provide (the Website, the App(s), Network and all such services, collectively, “Services”). Accordingly, please read this Agreement carefully, because it constitutes a written contract between you and OpenCity in regard to your use of our Services, and it affects your legal rights and obligations. Each time you access and/or use our Services, you agree to be bound by and comply with all the terms and conditions of this Agreement. By way of example and not limitation, viewing our Website, downloading our App(s), sending a communication (including, but not limited to, a telephone call, a video call, a text message, an SMS message, an email, or other type of communication, regardless of format) through our Network, or making any other use of our Services constitutes your affirmative consent that you will comply with and be bound by the terms of this Agreement. Therefore, do not use the Services if you do not agree to all of the terms of this Agreement.
Also, please note that (as stated in Section 13.B. (“Updates to this Agreement”) below) OpenCity reserves the right to modify, change, amend, update, or supplement the terms and conditions of this Agreement at any time without prior notice. Therefore, we recommend that you review this Agreement from time to time to determine if changes have been made to this Agreement, because you will be bound by the most recent version of this Agreement: You understand and acknowledge that OpenCity shall only be posting the most recent version of this Agreement on the Website, that you are bound by the most recent version of this Agreement at any time you use or access Services in any manner, and, therefore, you agree that it is your responsibility to review this Agreement on a regular and frequent basis.
The Services provide Content (defined in Section 2 below) for the following different types of users, and this Agreement applies to each category.
(1)“Visitors” are defined as persons who make only passive, non-interactive use the Website and who do not make any other active use of our Services.
(2)“Customers” are defined as persons who use our texting, messaging, and multi-media communications Network (by sending, via the Network, some form of communication, including, but not limited to, a telephone call, a video call, a text message, an SMS message, an email, or other type of electronic communication, regardless of format), who register and create an account profile in order to access certain portions of our Website, who download and use the App(s), or who otherwise use our Services.
If you are a minor, you may not use the Services as either a Visitor or Customer unless you do so under the immediate supervision of a parent, guardian, or other responsible adult.
In this Agreement, we refer to Visitors and Customers collectively as “Users.”
2.SERVICES and CONTENT.
The Services contain, or may contain, a variety of materials and other items relating to OpenCity and its products and services, and similar items from our licensors, merchants, partners, vendors, Network members, and other third parties who support us or are affiliated with us (collectively “Partners”). All content in the Services, including, but not limited to, all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website and/or the App(s), and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material (including source and object code), trademarks, logos, trade names, service marks, company names, and trade identities of various parties, including those owned by OpenCity (including OPENCITY and the OPENCITY Logo) and those owned by third parties and licensed to OpenCity for use on the Website, and other forms of intellectual property are defined collectively as “Content,” which term includes all of the foregoing.
The Services and the Content (including any past, present, and future versions) are either owned by OpenCity or controlled by OpenCity through licenses granted to OpenCity by its Partners. All right, title, and interest in and to the Content available via the Services is the property of OpenCity or of its Partners, and is protected by U.S. federal copyright, trademark, patent, and trade secrets laws and by other federal and state intellectual property and unfair competition laws. In addition to OpenCity’s copyright ownership of the Content, OpenCity owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content. “Intellectual Property Rights,” as used in this Agreement, means any and all rights belonging to OpenCity and existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information. As between you and OpenCity, OpenCity retains all its respective titles, interests, and ownership in the Website, Network, App(s), Content and Services, and you understand and acknowledge that neither you nor any other User acquires any ownership in any Intellectual Property Rights regarding any of the foregoing.
C.Limited License Granted to You.
Subject to your strict compliance with this Agreement, OpenCity grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license (the “Limited License”) to access and use the Services in accordance with the instructions we provide for such use.
The foregoing Limited License does not give you any ownership of, or any other intellectual property interest in, the Services or any Content, and OpenCity reserves the right to suspend or terminate, at any time and for any reason, your Limited License without any advance notice to you, and without any liability. No right or license other than the Limited License may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by OpenCity. Any unauthorized use of the Services or any Content for any purpose is strictly prohibited.
D.Rights of Others.
In using the Services, you must respect the rights of others. Your unauthorized use of Content or the Services may violate rights owned by OpenCity or its Partners, and/or your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws. If you make unauthorized use of Content owned by OpenCity or its Partners or of materials owned by a third party, your use may result not only in the termination or suspension of your account or your ability to use the Services, but also in personal liability for you, as well as potential criminal liability.
The Website or the App(s) may provide links to other websites operated by third parties who are not related to, affiliated with, or endorsed by OpenCity. Because OpenCity has no control over such third-party websites, you understand and acknowledge that OpenCity is not responsible for the availability of such websites and bears no responsibility or liability whatsoever for any content, advertising, services, products, or other materials on or available from such websites. Accordingly, you acknowledge and agree that OpenCity shall have no responsibility or liability, directly or indirectly, for any damage or loss suffered by you and caused directly or indirectly by such third-party websites. Further, you understand, acknowledge, and agree that this Agreement does not apply to third-party websites and that your use of such websites is subject to the terms and conditions and policies of the owner or owners of such third-party websites.
3.USER-GENERATED CONTENT: CONTENT YOU SUBMIT.
A.Your Ownership of User-Generated Content.
OpenCity may provide Users with the opportunity to post, upload, display, distribute, transmit, or otherwise make available on or submit through the Services (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, articles, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”). Subject to the rights and license you grant to OpenCity in this Agreement (see below), you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content. You understand and acknowledge that OpenCity has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content.
B.The License You Grant to OpenCity Regarding Your User-Generated Content.
While you maintain ownership of your User-Generated Content, you hereby grant to OpenCity and our Partners – subject to your privacy settings – a non-exclusive, worldwide, irrevocable, perpetual, non-terminable, fully paid-up and royalty-free right and license to use, copy, record, distribute, reproduce, disclose, sublicense, display, transmit, , translate, make derivative works of, and otherwise exploit, all or any portion of your User-Generated Content for the purpose of operating our Services and collaboration with our Partners, in all formats, on or through any media, software, formula, or medium now known or yet to be developed in the future, and with any technology or devices now known or yet to be developed in the future.
In order to further effect the rights and license that you grant to OpenCity to your User-Generated Content, you hereby waive any moral rights (including right of attribution and right of preservation of the integrity of your User-Generated Content) that you may have in any User-Generated Content, even if it is altered or changed by OpenCity.
Further, you understand and acknowledge that the license you are granting to OpenCity is perpetual and will continue in full force and effect even if you remove your User-Generated Content from the Services.
C.OpenCity’s Exclusive Right to Manage All User-Generated Content.
OpenCity may, but has no obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and OpenCity may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of your User-Generated Content without notice to you and without any liability to you or any third party. OpenCity reserves the right to treat User-Generated Content on the Website as content stored at the direction of Users for which OpenCity will not exercise any control except to block or remove content that comes to OpenCity's attention and is offensive, obscene, lewd, lascivious, salacious, violent, harassing, threatening, abusive, infringing, illegal or otherwise objectionable either under a community standard or in OpenCity’s sole discretion and judgment; or, to enforce the rights of third parties or the content restrictions set forth in other provisions of this Agreement, when notice of a violation comes to OpenCity’s attention. You understand and acknowledge that OpenCity has no obligation to post, display, maintain, store, access, cache, or archive your User-Generated Content for any period of time.
D.OpenCity’s Enforcement Rights in User-Generated Content.
You grant OpenCity the right to protect and enforce its licensed rights to your User-Generated Content, including the right to bring and control enforcement actions in your name and on your behalf at OpenCity’s cost and expense, and to initiate such enforcement action without consulting you ahead of time. You hereby consent and irrevocably appoint OpenCity as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest, for the enforcement of OpenCity’s licensed rights to your User-Generated Content.
E.Your Representations and Warranties for Your User-Generated Content.
Each time you submit any User-Generated Content, you represent and warrant the following:
(1)that you are either over the age of eighteen or that you are over the age of thirteen and have obtain the consent of your parent or guardian; and
(2)you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant OpenCity the rights to it that you are granting by this Agreement; and
(3)the User-Generated Content is accurate; and
(4)the User-Generated Content is not offensive, obscene, lewd, lascivious, salacious, violent, harassing, threatening, abusive, illegal, injurious, harmful to any other person, or otherwise objectionable; and
(5)the User-Generated Content does not and will not infringe any intellectual property or other right of any third party; and
(6)the User-Generated Content will not violate this Agreement.
F.OpenCity’s Right to Use Non-Personally Identifiable Data.
You understand, agree, and acknowledge that OpenCity may aggregate non-personally identifiable information and demographic data regarding Users, including you, and their behavior in using the Services and their activities in regard to the Services (“Non-PII Data”). OpenCity may use and retain this Non-PII Data for any purpose, including but not limited to improving or modifying the Website, without any compensation or royalty owed to you or to any other User.
4.USER CONDUCT ON THE WEBSITE.
You hereby understand, acknowledge, and agree that you will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Content or the Services in whole or in part; and/or remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to OpenCity’s ownership of the Content and the Services; and/or copy, reproduce, publish, distribute, or redistribute any of the Content, in whole or in part, to any person who is not an authorized User of the Services; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Content, the Services, any rights granted under this Agreement, or any intellectual property rights owned by OpenCity to any other person or entity; and/or provide any other person or entity access to the Services by means of your username and/or your password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell your username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Services or the Content, or otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Services or the Content; and/or monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Services by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or frame or use framing techniques to enclose any Content (including any images, text, or page layout) and display any Content within the frame on another website; and/or insert any code or product to manipulate Content in any way that affects, adversely or otherwise any other User’s experience with the Services; and/or make or attempt to make any commercial use or exploitation of the Services or any of the Content; and/or circumvent, disable or otherwise interfere with the security features of the Services or the Content, or any features that prevent or restrict use or copying of any Content or enforce limitations on use of the Content; and/or collect or harvest any PII, including usernames and passwords, from the Services; and/or create multiple accounts by manual or automated means or under false or fraudulent pretenses; and/or create or transmit unwanted electronic communications or “spam” to other Users of the Services; and/or transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on or in the Services; and/or use the Services or the Content to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or use any metatags or any other “hidden text” utilizing any OpenCity trademarks and/or use any device, software or routine that interferes with the proper working of the Services or the Content; and/or claim the Services or any of the Content as your property, your creation, or your work of authorship, in whole or in part; and/or contest or dispute OpenCity’s ownership of all Intellectual Property Rights in the Services and the Content; and/or use the Content after the termination date of your account; and/or fail at any time to provide true, accurate, complete, and current account registration data and information; and/or engage in any activities through or in connection with the Services that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, salacious, injurious, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to OpenCity; and/or use the Services and/or the Content, in whole or in part, in any manner not authorized by this Agreement.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS MAY, IN OPENCITY’S SOLE DISCRETION AND JUDGMENT, SUBJECT YOU TO THE IMMEDIATE SUSPENSION OR TERMINATION OF YOUR ACCOUNT, AND MAY SUBJECT YOU TO CRIMINAL LIABILITY AND/OR LIABILITY FOR DAMAGES, COSTS, EXPENSES, OR FEES (INCLUDING ATTORNEY’S FEES) INCURRED BY OPENCITY IN ENFORCING ITS RIGHTS AGAINST YOU UNDER THIS AGREEMENT.
B.Usernames and Passwords.
When you become a registered Customer, you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree to the following:
(1)You will not use a username (or e-mail address) that is already being used by someone else, that may impersonate another person, that belongs to another person, that violates the intellectual property rights or other right of any person or entity, or that is offensive (OpenCity may reject the use of any password, username, or email address for any reason in our sole discretion); and
(2)You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete for as long as you use the features to which the registration relates; and
(3)You are solely responsible for all activities that occur on or in the Services under your account, password, and username, including all activities conducted by any person who is under your employment or acting under your supervision and to whom you have delegated limited responsibility for undertaking certain tasks for you in regard to the Website (a “Delegate”) whether or not you specifically authorize the activity of such Delegate or any such other person (except to the extent that any activity occurs due to unauthorized use of your password and username by another person or entity); and
(4)You are solely responsible for maintaining the confidentiality of your password and for restricting access to your computer, phone, pad, tablet, or other Internet Access Device, so that others may not access any password protected portion of the Website using your name, username, or password; and
(5)You will immediately notify OpenCity of any unauthorized use of your account, password, or username, or any other breach of security; and
(6)You will not sell, transfer, or assign your account or any account rights.
OpenCity shall have no liability for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
C.Termination of Your Account.
If any information that you provide as part of your account registration is false, inaccurate, outdated, incomplete, or violates this Agreement, or any legal requirement or state or federal law, then OpenCity may suspend or terminate your account in its sole discretion. OpenCity also reserves the general right to terminate your account or suspend or otherwise deny you access to it or its benefits - all in our sole discretion, for any reason, and without advance notice to you or any liability to you or to any third party.
D.Services Access Charges.
OpenCity reserves the right, upon reasonable notice, to charge for access to some or all of the Services, charge for access to premium functionality or Content on some or all of the Services. OpenCity further retains the right to change the terms and conditions for accessing the Services or portions of the Services; and the right to restrict access to the Services or portions of the Services, in whole or in part, based on any lawful eligibility requirements OpenCity may elect to impose (e.g., geographic or demographic limitations). OpenCity may modify, revalue, increase, or decrease fees due from Users for various Content features on or in the Services at its sole discretion without advance notice or liability.
E.Your Use of an Internet Access Device and Third-Party Components.
You understand and agree that your use of any Internet Access Device and/or all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items used by you to access the Website (“Third-Party Components”) are the sole and exclusive responsibility of you alone, including all costs of your use of such Third-Party Components, and that OpenCity has no responsibility for such third-party components, services, or your relationships with such third parties. You agree that you shall at all times comply with the lawful terms and conditions of your agreements with such third parties. OpenCity does not represent or warrant that the Services and the Content are compatible with any specific third-party hardware or software or any other Third-Party Components. You are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate and access the Services.
The Services may offer certain features and services that are available to you via your wireless Internet Access Device. These features and services may include the ability to access the Services’s features and upload content to the Services, receive messages from the Services, and download applications to your wireless Internet Access Device (collectively, “Wireless Features”). Standard messaging, data, voice, video, and multi-media transmission fees, as well as other related fees, may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Access Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier directly with questions regarding these issues. You understand and acknowledge that OpenCity has no responsibility or liability for your ability or inability to access or take advantage of any Wireless Features due to your carrier, your phone service plan, your Internet Access Device, or any other Third-Party Component.
OpenCity will respond to consumer service requests and other similar inquiries if properly communicated to OpenCity. Please contact us at CustomerService@OpenCity.co.
6.REPORTING INTELLECTUAL PROPERTY INFRINGEMENT.
A.DMCA Notice for Copyright Infringement.
OpenCity will respond appropriately to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that the copyright in that work has been infringed by an improper posting of it as part of User-Generated Content on the Website, then you may send us a written notice, which notice must include all of the following:
(1)a subject line that says: “DMCA Copyright Infringement Notice”; and
(2)a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; and
(3)a description of the location of the infringing material on the Website; and
(4)your full name, address, telephone number, and e-mail address; and
(5)a statement by you that you have a good faith belief that use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner; and
(6)a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner); and
(7)your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), the characters “//s//” followed by your full typed name, which will serve as your electronic signature.
OpenCity may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and OpenCity may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
OpenCity will only respond to DMCA Notices that it receives by mail, e-mail or facsimile at the addresses below:
By Mail: 44 Portland St, Ste 400, Worcester, MA 01608
By E-Mail: UserNotices@OpenCity.co
We may send the information that you provide in your DMCA Notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting OpenCity’s other rights, OpenCity may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by OpenCity.
B.DMCA Counter-Notification regarding Copyright Infringement.
If access on the Services to a work that you submitted to OpenCity is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(1)a subject line that says: “DMCA Counter-Notification”; and
(2)a description of the material that has been removed or to which access has been disabled and the location at which the material appeared on the Website before it was removed or disabled; and
(3)a statement made under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
(4)your full name, address, telephone number, e-mail address, and the username of your account; and
(5)a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Northern District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(6)your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), the characters “//s//” followed by your full typed name, which will serve as your electronic signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than 10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
C.Reporting Infringement of Other Intellectual Property.
If you own intellectual property other than a copyright and believe that your intellectual property has been infringed by an improper posting or distribution of it on the Services, then you may send OpenCity a written notice to one of the addresses set forth in Section 4.A. above that includes all of the following:
(1)a subject line that says: “Intellectual Property Infringement Notice”; and
(2)a description of the intellectual property that you claim has been infringed, or a list of the intellectual property if multiple works have been infringed; and
(3)a description of the location of the infringing material on the Website; and
(4)your full name, address, telephone number, and e-mail address; and
(5)a statement by you that you have a good faith belief that use of the allegedly infringing material in the manner complained of is not authorized by the owner; and
(6)a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner); and
(7)your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), the characters “//s//” followed by your full typed name, which will serve as your electronic signature.
OpenCity will act on such notices in its sole discretion. Any User of the Website that fails to respond satisfactorily to OpenCity with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
By Mail: 44 Portland St, Ste 400, Worcester, MA 01608
By E-Mail: UserNotices@OpenCity.co
7.span>YOUR GENERAL REPRESENTATIONS AND WARRANTIES.
You represent and warrant the following in respect of this Agreement:
A.You have the necessary authority to enter into this Agreement and you understand its terms; and
B.If you are an individual, you are over the age of eighteen, or that you are a minor using the Services under the immediate supervision of a parent, guardian, or other responsible adult; and
C.If you are a Customer, you will cooperate with all of the instructions, rules, and procedures that apply to your use of the Services as a Customer;
D.If you begin registration or have registered, you have provided and will continue to provide true, accurate, current, and complete registration information; and
E.You will respect and abide by all of your obligations under this Agreement, and you will perform your obligations under this Agreement diligently; and
F.You will comply with all laws and regulations applicable to this Agreement.
8.YOUR INDEMNIFICATION RESPONSIBILITIES.
You shall indemnify and hold harmless OpenCity, its affiliate companies, its officers, directors, employees, agents, and representatives from, and, at your expense, shall defend OpenCity against, any loss, damage or expense (including reasonable legal costs) that OpenCity incurs or becomes liable for as a result of any breach by you of any of the terms of this Agreement; any negligent, reckless or willful act or omission by you or your agents or others for whom you are responsible; any failure by you to comply with applicable laws in performing under this Agreement; any misuse by you of the Services and/or the Content; or, any claim made against OpenCity by any third party for which OpenCity is not liable under this Agreement, and which arises as a consequence of your use of the Services. You shall reimburse OpenCity for its expenses under this Section as they are incurred. OpenCity shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of OpenCity, enter into any settlement which adversely affects OpenCity’s rights or which does not include, as an unconditional term, a release granted to OpenCity of all liabilities in respect of such claim, action or proceeding.
9.YOUR ASSUMPTION OF THE RISK IN USING THE SERVICES.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOU ARE RESPONSIBLE FOR ALL OF YOUR INTERACTION WITH CUSTOMERS AND VISITORS ON THE WEBSITE; AND THAT YOU ASSUME ALL RISK IN REGARD TO YOUR ACTIVITIES RELATED TO THE SERVICES.
10.NO OTHER WARRANTIES FROM OPENCITY.
OPENCITY’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY OPENCITY WITH RESPECT TO THE SERVICES AND THE CONTENT, AND ANY OTHER ITEM OR SERVICE PROVIDED BY OPENCITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, THE SERVICES, THE CONTENT, AND ANY OTHER ITEMS OR SERVICES ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS. OPENCITY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY YOU OR ANY USER AS A RESULT OF PROVISION OR USE OF THE SERVICES AND/OR THE CONTENT; AND ANY WARRANTY OF UNINTERRUPTED OR ERROR-FREE OPERATION OF OR ACCESS TO THE SERVICES OR CONTENT. OPENCITY RESERVES THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE SERVICES INCLUDING ANY CONTENT, AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU OR TO OTHER USERS. NO ORAL OR WRITTEN INFORMATION BY OPENCITY OR ANY OTHER ENTITY OR PERSON SHALL CREATE ANY ADDITIONAL REPRESENTATION OR WARRANTY BY OPENCITY. OPENCITY DOES NOT REPRESENT, WARRANT, OR GUARANTY TO YOU OR ANY USER ANY PARTICULAR RESULTS TO BE ACHIEVED AS A RESULT OF YOUR USE OF THE SERVICES AND/OR THE CONTENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT OPENCITY HAS NO RESPONSIBILITY OR LIABILITY FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON YOUR USE OF THE SERVICES AND/OR THE CONTENT. OPENCITY IS NOT LIABLE FOR ANY DAMAGES THAT YOU OR ANOTHER USER MAY SUFFER ARISING OUT OF USE, DELAY IN PROVIDING, OR INABILITY TO USE, THE SERVICES AND/OR THE CONTENT. OPENCITY IS NOT LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF ANY OF YOUR USER-GENERATED CONTENT OR YOUR REGISTRATION INFORMATION OR DATA.
11.SERVICES AND CONTENT DISCLAIMER.
OPENCITY UNDERTAKES NO RESPONSIBILITY FOR, AND DISCLAIMS ALL LIABILITY ARISING FROM, ANY INABILITY OF YOU OR OTHER USERS TO ACCESS THE SERVICES AND/OR THE CONTENT. OPENCITY PROVIDES ACCESS TO THE THE SERVICES AND THE CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTY THAT THE SERVICES AND/OR THE CONTENT WILL BE AVAILABLE OR FULLY OPERATIVE AT ANY TIME OR ON AN UNINTERRUPTED OR ERROR-FREE BASIS. THE SERVICES AND/OR THE CONTENT MAY CONTAIN ERRORS, GLITCHES, BUGS, OR OTHER DEFECTS. CONTENT, INCLUDING USER-GENERATED CONTENT, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, MAY CONTAIN ERRORS OR INACCURACIES, SHOULD NOT BE INTERPRETED AS PERSONAL, FINANCIAL, OR MEDICAL ADVICE, AND OPENCITY IS NOT RESPONSIBLE FOR ANY ACTIONS YOU TAKE OR FAIL TO TAKE BASED ON THE CONTENT. THE VIEWS EXPRESSED IN USER-GENERATED CONTENT ARE NOT PRE-REVIEWED OR PRE-APPROVED BY OPENCITY AND THEREFORE DO NOT REPRESENT ANY EXPRESS OR EXPLICIT VIEW OF OPENCITY ON ANY TOPIC WHATSOEVER. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDIES IN THE EVENT OF YOUR DISSATISFACTION WITH THE SERVICES AND/OR THE CONTENT ARE FOR YOU TO NOTIFY OPENCITY ABOUT YOUR DISSATISFACTION, IN WHICH CASE OPENCITY WILL REVIEW THE COMPLAINT WITH OPENCITY’S TECHNICAL AND SUBJECT-MATTER EXPERTS, AND/OR TO STOP USING THE SERVICES AND/OR THE CONTENT.
12.LIMITATION OF LIABILITY FOR OPENCITY.
IN NO EVENT WILL OPENCITY’S LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, THE CONTENT, THE WEBSITE, OR THE APP(S) OR ANY OTHER ITEMS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CLAIM OR FORM OF ACTION, INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF OPENCITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. YOU UNDERSTAND AND ACKNOWLEDGE THAT OPENCITY’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER OR RELATING TO THIS AGREEMENT UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED AN AMOUNT, IN AGGREGATE, EQUAL TO THE FEES PAID BY YOU TO OPENCITY IN THE TWELVE MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE. YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR RELATIONS WITH OTHER USERS, AND THAT OPENCITY SHALL NOT BE LIABLE TO YOU OR ANY OTHER USERS, UNDER ANY CIRCUMSTANCES, FOR ANY DISPUTE THAT ARISES BETWEEN YOU AND ANOTHER USER OF THE SERVICES OR THE CONTENT.
A.Governing Law and Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California. Disputes arising under this Agreement shall proceed through three levels of resolution, if necessary: negotiations between you and OpenCity, mandatory mediation, and court proceedings. Any dispute which arises under this Agreement and cannot be resolved by good-faith negotiations between the parties within ninety (90) days must be submitted for a mandatory mediation procedure in San Francisco, California before a neutral mediator chosen and appointed by Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The mediation shall take place on within forty-five (45) days after the mediator has been appointed, and at the direction of the mediator. The mediation shall take place on one business day and shall last no longer than ten (10) hours unless the parties mutually agree to an extension of the mediation procedure. The mediator shall apply U.S. and California law to substantive issues and the JAMS procedural rules for Commercial Mediation to procedural issues. The parties shall bear their own costs for the mediation, and they shall split equally the costs and fees of the mediator. If either party is unsatisfied with the resolution provided by the mediator, either party may file a claim in the appropriate state or federal court sitting in the Northern District of California. You hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in the Northern District of California for resolving any disputes arising under this Agreement which cannot be resolved either by negotiations or by mediation between you and OpenCity.
(1)OpenCity’s Right to Injunctive Relief.
The foregoing provision regarding dispute resolution will not apply to any legal action taken by OpenCity to seek an injunction or other equitable relief in connection with any loss, cost, expense, or damage (or any threatened or potential loss, cost, expense, or damage) relating to the Services, the Website, the App(s), any Content, your User-Generated Content and/or OpenCity's Intellectual Property Rights, OpenCity's operations, and/or OpenCity's other products or services.
(2)Your Waiver of Injunctive or Equitable Relief.
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY SERVICES, WEBSITE, CONTENT, USER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY OPENCITY (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR BY A PARTNER OF OPENCITY.
B.Updates to this Agreement.
OpenCity reserves the right to modify, change, amend, update, or supplement the terms and conditions of this Agreement at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms and to the most recent version of this Agreement. The Updated Terms will be effective as of the time that OpenCity posts them on the home page of the Website, in the header of this Agreement, or such later date as may be specified in them. You understand and acknowledge that OpenCity shall only be posting the most recent version of this Agreement on the Website, that you are bound by the most recent version of this Agreement at any time you use or access Services in any manner, and, therefore, you agree that it is your responsibility to review this Agreement on a regular and frequent basis.
OpenCity controls and operates the Website from its offices in California, U.S.A. OpenCity makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Services from other locations, you are doing so of your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Subject to the terms of this Agreement, OpenCity reserve the right to limit the availability of, restrict access to, or discontinue the Services and/or any Content, program, product, service, or other feature described or available on or in the Services to any person, entity, geographic area, or jurisdiction, at any time and in OpenCity’s sole discretion, and to limit the quantities of any content, program, product, service, or other feature that OpenCity provides. Some content, programs, services, or features may be available on this or only on a subscription or fee basis.
D.Severability and Interpretation.
If any provision of this Agreement is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this Agreement (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”
Whenever you communicate with OpenCity electronically, such as via e-mail and text message, you consent to receive communications from OpenCity electronically. Please note that, except as set forth in the provisions of this Agreement regarding the DMCA, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
F.Law Enforcement and Termination of Accounts or of the Website.
OpenCity reserves the right, without any limitation, to investigate any suspected breaches of its Website security or its information technology or other systems or networks, investigate any suspected breaches of this Agreement, investigate any information obtained by OpenCity in connection with reviewing law enforcement databases or complying with criminal laws, involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, prosecute violators of this Agreement, and discontinue the Website, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to OpenCity under this Agreement. Upon suspension or termination of your access to the Website, or upon notice from OpenCity, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to OpenCity in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
OpenCity may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any advance notice to you or other Users. This Agreement may not be assigned by you in whole or in part, without the prior written consent of OpenCity.
Except as expressly set forth in this Agreement, no failure or delay by you or OpenCity in exercising any rights or remedies under this Agreement will operate as a waiver of that or any other right or remedy.
I.No Partnership or Joint Venture.
Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between you and OpenCity.
This Agreement contains your entire understanding with OpenCity with respect to the subject matters covered by this Agreement, and it supersedes any and all prior oral or written proposals or understandings.
End of Agreement