These Terms of Service (this “Agreement”) sets forth the terms and conditions that apply to your access and use of the tryotter.com website (the “Site”) and the Otter restaurant order management app (“Otter”; together with the Site, the “Services”), as owned and operated by Restaurant Technology Solutions, LLC (“RTS“) or its affiliates. By accepting electronically (for example, by checking the box during signup to signal your acceptance of this Agreement), installing, accessing or using the Services, you agree to be bound by the terms and conditions of this Agreement, as it may be amended from time to time in the future (see Section 19 (Modifications) below). If you do not agree to this Agreement, then you may not use the Services.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A MANDATORY ARBITRATION AGREEMENT IN SECTION 20, WHICH REQUIRES ARBITRATION IN MOST CIRCUMSTANCES AND PROHIBITS YOU FROM SUING RTS INDIVIDUALLY OR IN A CLASS ACTION, OR PARTICIPATING IN A THIRD-PARTY CLASS ACTION AGAINST RTS. THIS AGREEMENT ONLY APPLIES IF YOU WILL BE ACCESSING AND USING THE SERVICES IN THE UNITED STATES. IF YOU WISH TO ACCESS OR USE THE SERVICES OUTSIDE THE UNITED STATES, YOU MAY NEED TO ENTER INTO A DIFFERENT AGREEMENT WITH RTS.
By using the information, tools, features, software and functionality of the Services (including content, updates and new releases provided by RTS), you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply visit the Site), or a “Customer” (which means that you have registered for an account with us to use the Services.) The terms “you” or “User” refers to both Visitors and Customers. If you use the Services on behalf of a restaurant or other business, (a) you represent and warrant to RTS that you are authorized to contract in the name of the restaurant or business, (b) your acceptance of this Agreement is on behalf of the restaurant or business, and (c) “you” and “User” refers to this restaurant or business. The term “we” refers to RTS.
If you wish to become a Customer or want to make use of the Services, you must read this Agreement and indicate your acceptance during the registration process. You may not use any of the Services and you may not accept this Agreement if you are not legally authorized to accept and be bound by this Agreement or are not at least 18 years of age.
Before you continue, you should print or save a local copy of this Agreement for your records.
The Services allows you to aggregate and help manage your queue of to-go orders arriving from a variety of channels. The Service may support, for instance, orders arriving through your own website, through phone calls, or through third-party online food ordering platforms (“OFO Platforms”). You represent and warrant to us that (a) you have chosen to use one or more food ordering channels or OFO Platforms, (b) you do not maintain an exclusive contractual relationship with any food ordering channel or OFO Platform and do not wish to be limited to any one such channel or OFO Platform, and (c) you intend to use the Services in order to aggregate and manage such channels and OFO Platforms and other services more conveniently and effectively.
Paid features of the Service are subject to additional terms (the “Order Terms”) presented at the time of the applicable order. We use a third-party provider to process Service payments, and we do not store credit card numbers. We reserve the right to reject any order. Unless specifically described otherwise in the Order Terms, we do not provide refunds for the Services.
Using nonpublic functions of the Services, including Otter itself, requires signing up for an account with RTS. We may verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include asking you for further information, requiring you to provide your full address, your date of birth or similar information, and/or requiring you to take steps to confirm ownership of your email address, or verifying information you provide against third party databases or through other sources. If you do not provide this information or RTS cannot verify your identity, we can refuse to allow you to use the Services.
You are responsible for maintaining the confidentiality of your password which, together with your e-mail address, allows you to authenticate yourself and access the Services. That email address and password, together with any phone numbers, restaurant name, personal name, address and other information you provide us about your restaurant, its operations, its owners and its personnel, comprise your “Registration Information.” By providing us with your e-mail address, you consent to receive all required notices and information by e-mail to this address. Electronic communications may be posted on the Site, through the Otter interface, and/or delivered to the e-mail address that we have on file for you.
You represent and warrant to us that all Registration Information you provide is complete and accurate, and you acknowledge that we are entitled to rely on all such Registration Information without any further duty to verify it. It is your responsibility to promptly update us with your complete, accurate contact information, or change your Registration Information, including email address, as appropriate. Notices will be provided in the text of the e-mail or through a hyperlink to the appropriate page on the Service. Your consent to receive communications electronically is valid until you end your relationship with us.
You may print a copy of any electronic communications and retain it for your records. We reserve the right to terminate or change how we provide electronic communications and will provide you with appropriate notice in accordance with applicable law.
If you believe that your Otter account, or your Registration Information or Account Information (as defined below) or the device that you use to access the Services has been lost or stolen, or that someone is using your Otter account without your permission, you must notify us immediately at firstname.lastname@example.org in order to minimize your possible losses. You are responsible for all activity that occurs under your Otter account, and you agree to maintain the security and secrecy of your Otter account username and password at all times. Unless otherwise permitted by RTS in writing, you may only possess one Otter account.
You may only access Otter through the tablet device provided to you by RTS (the “Tablet”). The Service may also be configured to print order details to a printer device provided to you by RTS (the “Printer”; together with the Tablet, the “Hardware”).
The Order Terms applicable to your Hardware describe the payment structure applicable to the Hardware. Unless the Order Terms expressly provide that the Hardware is sold to you outright, you acknowledge that the Hardware is rented, not sold, to you. In this case:
You may use the Hardware only in connection with the Services. RTS may remotely disable the Hardware following termination of this Agreement, or if we reasonably believe that not disabling the Hardware poses an unacceptable risk to the security or operation of the Service, or to our rights or those of third parties.
If your Hardware is lost, damaged or inoperable, please contact us at email@example.com. We will repair or replace (at our option) any Hardware that does not, at the time of delivery, meet the original manufacturer’s specification. However, you are responsible for all costs of repair or replacement of any Hardware that is lost or stolen, or is damaged due to your (or any third party’s) abuse, misuse or neglect.
The Service may provide integrations with OFO Platforms, payment processors, website hosts, point-of-sale systems, or other third-party services (collectively “Integrated Vendors”). If you have a separate customer relationship with an Integrated Vendor, you may be eligible to link your account with the Integrated Vendor with your Otter account. We refer to this as “Linking” these accounts. You may Link accounts with Integrated Vendors either when you first create your account with us or thereafter while your account with us remains active.
Once you have Linked an Integrated Vendor account, you hereby direct RTS to access, retrieve and use information that relates to (a) you or your relationship with such vendor; (b) orders placed with you; or (c) diners who have placed orders with you or Integrated Vendors (such diners, “Diners”, and such information, “Diner Data”), in each case, where such information is provided, maintained or otherwise made available by the Integrated Vendor. (We refer to all of this information together as “Account Information.”) By Linking your account, may also direct RTS, through your use of Otter, to interact with the Integrated Vendor on your behalf. These interactions may include, for instance, setting Otter to automatically accept orders on your behalf that you receive through an OFO Platform you have Linked with the Service.
By using the Services, you expressly authorize RTS to access, retrieve and use your Account Information maintained by Integrated Vendors, on your behalf as your agent, and you expressly authorize (a) such Integrated Vendors to disclose Account Information to us and (b) us to access, retrieve, and use such websites, applications, data feeds, application program interfaces (APIs) and hardware, in each case, owned or operated by Integrated Vendors (collectively, “Vendor Systems”) to do so. When you use the Linking feature of the Services, you will be directly connected to the Vendor Systems of the Integrated Vendors you have identified. RTS will submit information (including usernames and passwords) that you provide to log into the Vendor Systems of such Integrated Vendor. You hereby authorize and permit RTS to use and store the information you submit to accomplish the foregoing and to configure the Services so that they are compatible with the Vendor Systems of the Integrated Vendors for which you submit your information.
By Linking an Integrated Vendor account, you represent and warrant to RTS that (a) you are the legal and beneficial owner of the Integrated Vendor account, (b) you are authorized to provide us with all of the information you provide in connection with Linking (including, if applicable, the credentials you use to sign in to your Integrated Vendor account), as well as all Account Information that you make available to us through the Linked account; (c) you are authorized to appoint us as your agent as set forth above for us to access, retrieve and use Account Information from Vendor Systems of the Integrated Vendors that you have identified; and (d) you have provided any notices, obtained any consents (including from Diners), and satisfied any other requirements under applicable law, in each case, that are necessary for you and RTS to access, retrieve and use such information (including Diner Data and other Account Information) for the purposes as specified in this Agreement. You understand and agree that RTS (x) will be relying on such authorizations, notices, and consents, in particular for RTS to access Vendor Systems of Integrated Vendors and retrieving or using Account Information (including Diner Data) from such systems; and (y) is not responsible for independently obtaining authorizations or consents from, or providing notices to, third parties (including Integrated Vendors and Diners) for such activities.
For purposes of this Agreement and solely to provide the Account Information to you as part of the Services, you grant RTS a limited power of attorney, and appoint RTS as your attorney-in-fact and agent, to access Vendor Systems of Integrated Vendors and retrieve and use Account Information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN RTS IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM INTEGRATED VENDORS, RTS IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE OR VENDOR SYSTEM. You understand and agree that the Services are not sponsored or endorsed by any Integrated Vendors or other third-party services accessible through the Services. RTS is not responsible for any order processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information.
RTS will not review the Account Information for accuracy, legality, misappropriation or non-infringement. RTS is not responsible for the Account Information, or any products or services offered by Integrated Vendors. RTS cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. RTS cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings.
RTS provides the Linking functionality as an accommodation to Customers, but we cannot guarantee that we will support Linking with any particular third-party vendors in the future. We also cannot guarantee that we will continue to support existing Integrated Vendors in the future. We may disable some or all Links at any time, with or without prior notice.
The Services may provide hyperlinks to other websites belonging to RTS advertisers and other third parties. These resources are provided to you as a convenience. RTS does not endorse, warrant or guarantee the products or services available through these hyperlinks (or any other third-party products or services advertised on or mentioned in the Service), whether or not sponsored. RTS is not responsible for the activities or policies of those websites. RTS may receive compensation from third parties which may impact the placement and availability of the hyperlinks included in the Service.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You may only access and use the Services for lawful purposes.
Your access and use of the Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that RTS, in its sole discretion, may elect to take. IN NO EVENT WILL RTS BE LIABLE TO YOU OR TO ANY PARTY FOR ANY LOSS, COST, DAMAGE OR OTHER LIABILITY THAT RESULTS FROM ANY SCHEDULED OR UNSCHEDULED DOWNTIME.
RTS may access or store personal information in multiple countries, including countries outside of your own country to the extent permitted by applicable law.
From time to time, RTS may permit you to access pre-release features (“Beta” features) in the Services for your use and which permit you to provide feedback. You understand and agree that your use of Beta features is voluntary and RTS is not obligated to provide you with any Beta features. Furthermore, if you decide to use the Beta features, you agree to abide by any rules or restrictions RTS may place on them. You understand that once you use the Beta features, you may be unable to revert back to the earlier version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta feature back to the earlier version. The Beta features are provided on an “AS IS” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from any connected device. You acknowledge and agree that ALL USE OF THE BETA FEATURES IS AT YOUR SOLE RISK.
Use of the Services requires Internet and/or network access and may require third-party software or other services. You agree that you are solely responsible for meeting these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with the applicable providers. RTS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AS TO: (A) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (B) ANY LOSS, DAMAGE, LIABILITY, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (C) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
RTS may from time to time provide automatic alerts and voluntary account-related alerts. Automatic alerts may be sent to you following certain changes to your account or information.
RTS may add new alerts from time to time, or cease to provide certain alerts at any time upon its sole discretion. Any alerts provided to you through the Services may be delayed or prevented by a variety of factors. RTS may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. RTS shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
You agree that RTS may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with your Otter account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from RTS at any time, either by replying with the word “STOP” to using the mobile device that is receiving the messages, or by contacting RTS at firstname.lastname@example.org. If you do not choose to opt out, RTS may contact you for purposes related to the Services or as otherwise permitted by law.
By (a) submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to RTS through the Services, and (b) authorizing RTS to access, retrieve and using the Account Information, you are licensing that content to RTS for the purpose of providing the Services. RTS may use and store the content in accordance with this Agreement. You represent that you are entitled (x) to submit it to RTS for use for this purpose and (y) to authorize and license RTS to access, retrieve and use it for this purposes, in either case (x) and (y), without any obligation by RTS to pay any fees or royalties to you or any third party (including Integrated Vendors or Diners), or be subject to any restrictions or limitations.
As between you and RTS, you retain ownership of any data, information or material originated by you that you transmit through the Services or the Account Information. However, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to host, use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of this information (including the Account Information) in connection with Services and our business, including for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
Without limiting the foregoing license, you give RTS authorization to combine information (a) you enter, upload or make available through the Service, or (b) which we access, retrieve and use from Vendor Systems of Integrated Vendors (including Account Information), in each case (a) and (b), with that of other users of the Services and/or other RTS services (collectively, “Combined Information”). For example, this means that RTS may use your and other users’ information and Account Information to improve the Services or to discover and describe overarching trends in the restaurant industry. As between you and RTS, RTS will own all rights in and to information that is derived or arising from Combined Information.
You agree that RTS or its affiliates may include your name, trademarks, and logos on its website or other materials for the purpose of marketing our Services.
The contents of the Services, including their “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software and other material are protected under both United States and other applicable copyright, trademark and other laws. The contents of the Services belong or are licensed to RTS or its software or content suppliers. RTS grants you the right, solely during the term of this Agreement, to view and use the Services subject to this Agreement. You may download or print one copy of information made available to you through the Services for your personal, internal and non-commercial use only. Any distribution, reprint or electronic reproduction of any content from the Services in whole or in part for any other purpose is expressly prohibited without our prior written consent. You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement.
You agree that you will not:
You agree to (a) maintain the confidentiality, privacy and security of any Account Information or personal information (including personally identifiable information) that is accessed, stored or processes through the Services; and (b) adopt and implement any legally required or commercially standard privacy policies and information security plans with respect to such information.
As part of the Services, RTS may allow you to post content on bulletin boards, blogs and at various other publicly-available locations on the Service. These forums may be hosted by RTS or by one of our third party service providers on RTS’s behalf. You agree in posting content to follow certain rules.
The Services may include social features to exchange information with other users of the Services. RTS does not support and is not responsible for the content in these community forums. Please use respect when you interact with other users. Do not reveal information that you do not want to make public. Users may post hyperlinks to content of third parties for which RTS is not responsible.
THE SERVICES, HARDWARE, INFORMATION, DATA, FEATURES, AND ALL CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES OR PROVIDED THROUGH THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. RTS, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SERVICES OR THE HARDWARE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND THE HARDWARE IS AT YOUR SOLE RISK.
NEITHER RTS NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SERVICES, THEIR CONTENT OR THE HARDWARE, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER RTS NOR ITS SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SERVICES IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 15 OR 16 MAY NOT APPLY TO YOU.
IN NO EVENT SHALL RTS, NOR ANY OF ITS AFFILIATES, BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, OR HARM TO REPUTATION, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE SITE, YOUR USE OF THE SERVICES, THE SITE OR THIS AGREEMENT, EVEN IF RTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, RTS’S AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE AMOUNT YOU HAVE PAID FOR THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE THE CLAIM AROSE, OR (B) ONE HUNDRED DOLLARS ($100).
You represent and warrant to RTS that your acceptance of this Agreement, your performance of your obligations hereunder (including your grant of the rights and authorizations described herein) and RTS’s exercise of such rights and authorizations does not and will not (a) conflict with or breach any provision of your organizational documents or bylaws; (b) result in a default or breach under any contract to which you are a party, or of any other obligation applicable to you; (c) require the consent or authorization of any other person or entity; or (d) cause RTS to breach applicable laws.
You shall defend, indemnify and hold harmless RTS, its affiliates, and its and their respective officers, directors, shareholders, employees, agents, and contractors from and against all third-party claims, suits, proceedings, losses, liabilities, and expenses (including attorney’s or legal adviser’s fees), whether in tort, contract, or otherwise, arising (in whole or in part) out of or attributable to any breach or alleged breach of this Agreement or any activity by RTS or you in relation to the Services or this Agreement (or your use of the Services), including RTS accessing Vendor Systems of Integrated Vendors or accessing, retrieving or using Account Information (including Diner Data). RTS reserves the right to assume the exclusive defense and control of any matter subject to indemnification, at your expense.
This Agreement will continue to apply until terminated by either you or RTS as set out below.
If you want to terminate this Agreement for the Services, you may terminate your account using the process we describe on the Site. By terminating your account, you will terminate this Agreement (except as provided below).
RTS may at any time, terminate this Agreement with you and terminate access to the Services:
You acknowledge and agree that RTS may immediately deactivate or delete your account and all related information and files in your account and/or prohibit any further access to all files and the Services by you. Further, you agree that RTS shall not be liable to you or any third party for any termination of your access to the Services.
If you have a payment plan in effect at the time of termination, your remaining balance (if any) will come due immediately. Following termination of this Agreement, all licenses to you under this Agreement are terminated, and you must return any rented Hardware to us as provided in Section 3. Following termination of this Agreement, the following Sections will remain in effect: 9 (Alerts; Notifications), 10 (Rights You Grant to Us), 11 (RTS’s Intellectual Property Rights), 15 (Disclaimer of Representations and Warranties), 16 (Limitations on RTS’ Liability), 17 (Your Representations, Warranties and Indemnification of RTS), 20 (Arbitration Agreement), 21 (Governing Law), and 22 (General Terms).
RTS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, with or without notice. RTS reserves the right to change the Services, including applicable fees, in our sole discretion and from time to time. In such event, if you are a paid Customer, RTS will provide notice to you. For clarity, no change in fees will retroactively apply to prior purchases. If you do not agree to the changes after receiving a notice of the change to the Services, you may stop using the Services. Your use of the Services, after you are notified of any change(s) will constitute your agreement to such change(s). You agree that RTS shall not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Services.
RTS may modify this Agreement from time to time. Any and all changes to this Agreement may be provided to you by electronic means (i.e., via email or by posting the information on the Services). In addition, the Agreement will always indicate the date it was last revised. You are deemed to accept and agree to be bound by any changes to the Agreement when you use the Services after those changes are posted. If you do not agree to the changes, you may terminate this Agreement as provided in Section 18.
BY AGREEING TO THIS AGREEMENT, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST RTS ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS SECTION 20 (THIS “ARBITRATION AGREEMENT”). THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST RTS, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST RTS BY SOMEONE ELSE.
Agreement to Binding Arbitration Between You and RTS
You and RTS agree that any dispute, claim or controversy arising out of or relating to (a) the Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Agreement, will be settled by binding arbitration between you and RTS, and not in a court of law.
You acknowledge and agree that you and RTS are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and RTS otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and RTS each 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 party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
The parties agree and acknowledge that the Arbitrator shall resolve the dispute under the laws of the state of California.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of commercial dispute arbitrators. If the parties are unable to agree upon an Arbitrator within sixty (60) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure
Unless you and RTS otherwise agree, the arbitration will be conducted in the city of Los Angeles, CA Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The Arbitrator's decision and judgement must be in compliance and consistent with all applicable laws. The Arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses
Each party shall pay their respective AAA filing, administrative and arbitrator fees as set forth in the AAA Rules. Changes
Notwithstanding the provisions in Section 19 above, regarding consent to be bound by amendments to the Agreement, if RTS changes this Arbitration Agreement after the date you first agreed to the Agreement (or to any subsequent changes to the Agreement), you may reject any such change by providing RTS written notice of such rejection within 10 days of the date such change became effective, as indicated in the “Last Modified” date above. This written notice must be provided either (a) by mail to 324 S. Beverly Dr., #714, Beverly Hills, CA 90212, or (b) by email from the email address associated with your Otter account to: email@example.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and RTS in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Agreement (or to any subsequent changes to the Agreement).
Severability and Survival
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from the Agreement; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
This Agreement is governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above. However, the choice of law provision regarding the interpretation of this Agreement is not intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California.
This Agreement, together with all applicable Order Terms, reflects the entire agreement between RTS and you regarding the Services, and supersedes all prior or contemporary agreements or understandings between RTS and you regarding the Services.
You may not assign or novate this Agreement without RTS’ prior written approval. RTS may assign or novate this Agreement without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of RTS’s equity, membership interests, business or assets; or (c) a successor by merger. Any purported assignment or novation in violation of this provision shall be void.
All notices required to be provided to us under or in connection with this Agreement or the Services must be sent to firstname.lastname@example.org.
No joint venture, partnership, employment, or agency relationship exists between you, RTS or any third party as a result of this Agreement or use of the Services.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. RTS’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by RTS in writing. This provision shall not affect the “Severability and Survival” section of the Arbitration Agreement of this Agreement. The word “including” in this Agreement shall be without limitation.