Terms and Conditions of Use
Effective Date: May 2, 2022
Welcome to Otentu! We are extremely happy to have you visiting us. Regardless of if you are an arts or design student with unique creations or an art and design appreciator, you are in the right place, as we are here to connect you together.
- WHO WE ARE
We are Otentu Inc. (“Otentu”, “we” or “our”), a US based company, and we offer an online service for listing, promoting, viewing, selling and purchasing one of a kind, unique original art and design creations (“Item(s)”), designed and created by design students (“Creator(s)”), to art and design shoppers and appreciators (“Buyer(s)” or “Collectors”), through our website, accessible at www.otentu.com (“Site”) or mobile application (the “App”), together with any other services, software, tools, features or functionality made available by Otentu through our Site or App (“Service(s)”).
- TERMS AND CONDITIONS
These Terms & Conditions are very important, as they set the rules for your use of our Services. They serve as a binding contract between you and us.
Whether you are a Creator or a Buyer, to fully enjoy our Services, you need to read this document carefully before using, accessing, or installing any of our Services. By reading them, you will know what your rights and responsibilities are, when using our Services.
These Terms are a binding contract and shall apply to all features offered via the Services available now or that will be offered in the future.
TO SUMMARIZE, YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY SELLING OR PURCHASING AN ITEM ON OR THROUGH THE SERVICES OR BY POSTING ANY CONTENT ON THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SERVICES.
- YOUR PRIVACY
- ACCOUNT CREATION
You do not need an account to access our Site or App, however, if you are a Creator and wish to list an Item, or a Buyer and wish to purchase an Item through the Service, you must first create an account (“Account”).
To Create your Account, you need to:
- Be at least 18. If you are under 18, you cannot create an account by yourself, your parent or guardian will need to create an account for you. Any activity through such account must be permitted and supervised by your parent or guardian. If you are under 13. You cannot access or use our Services.
- Use Your Current Account with Others (like Google, LinkedIn or others). You may create an account by connecting through your Google, LinkedIn or other 3rd party account supported by the Service. We will create your account by extracting certain personal information, such as your name and email address and other personal information, that your privacy settings on such account permit us to access from such account.
- Provide Accurate Information About You. During the registration process you will be required to provide certain information. Please provide only accurate, current and complete information during the registration process.
- Choose a Username and Password. You will also need to establish a username and a password.
- Your Account Is Your Responsibility. You are responsible to keep your Account’s password confidential and secure. Keep in mind that your Account may contain your financial information, such as your credit card details, so do not disclose your password to any third party. You have the sole responsibility for any activities or actions under your Account. Please immediately notify us of any unauthorized use of your Account. You are also responsible for all activities taken under your Account.
Now your Account is all set, and you may:
Join our mailing list. When you create an Account, you will have the option to join our mailing list. You can choose to remove your email address from that mailing list by choosing the “unsubscribe” link at the bottom of any email communication we send to you.
One Last Thing Regarding Your Account:
We may terminate your Account. We hate to do this, but we may suspend or terminate your Account, if any information provided during the registration process or afterwards proves to be inaccurate, false, offensive, inappropriate, or incomplete.
We may also cancel your access to the Services and terminate your Account, at our sole consideration, at any time and for any reason, with or without notice to you. Upon any termination, discontinuation or cancellation of Services or your Account, some provisions of these Terms will continue to be in force such as, including, without limitation, licenses and ownership provisions, warranty disclaimers, limitations of liability, indemnity, and dispute resolution provisions.
- USE OF OUR SERVICE
- Your Right to Access the Services. Subject to these Terms, you may access and use the Services through our Site or App, strictly for the purpose of sale, appreciation, and purchase of Items.
- License to Use Our Service. Subject to these Terms, we grant you a revocable, non-exclusive, non-transferable, and non-sublicensable license, to use the Services.
- Do Not Sell or Buy a Listed Item Outside the Service. If you are a Creator who have submitted a listing for an Item and have been contacted by a Buyer with respect to purchasing an Item or a similar item or piece related to a listed Item, you may not sell such item independent of Otentu and the Service. Similarly, if you are a Buyer and desire to purchase an Item for which a Creator has submitted a listing, or a similar item or custom piece related to a listed Item, you may not purchase such item from such Creator independent of Otentu and the Service. Violation of this provision may result in the termination of your Account as a Creator or Buyer, in addition to any other remedies available to Otentu including, without limitation, injunctive or other appropriate relief.
- Do Not Do This When You Use the Services. The Services may be used only for lawful purposes.
In short, DO NOT breach these Terms, breach any law, damage our Service or systems, cause harm to others or steal from us or from others.
Now, in detail, DO NOT do any of the following:
- Posting any information which is incomplete, false, inaccurate or not your own;
- Impersonating another person;
- Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or which fails to comply with accepted Internet protocol;
- Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
- Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
- Posting material that infringes on any other intellectual property, privacy or publicity right of another;
- Attempting to interfere in any way with the Site’s, App or Otentu’s networks or network security, or attempting to use the Service to gain unauthorized access to any other computer system.
- Violations of system or network security may result in civil or criminal liability. We will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site or App including, without limitation, the following:
- Accessing data not intended for you or logging into a server or account which you are not authorized to access;
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
- Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus, worm, Trojan Horse or other harmful code to the Site, overloading, "flooding", "mailbombing" or "crashing"; or sending unsolicited e-mail, including promotions and/or advertising of products or services, or
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- USE OF SERVICE BY CREATORS
If you are a Creator who wishes to use our Service, you need to be aware of and comply with rules of this Section.
Listing Your Items:
- Only List Items You Have Created, Have No Other Copies and Do Not Breach Others’ Rights. You may list only Items that (i) you have designed and created and of which you are the exclusive owner; (ii) have no replicas; and (iii) will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights, or result in the violation of any applicable law or regulation.
- You Are Responsible For Your Items. Since you are the Creator, you are solely responsible for all Items that you make available through the Service.
- We May Ask You For Information. To accept your Item listing, we may ask you for some information, please make sure you respond to our request.
- We Need To Verify Your Identity. If you submit Items for sale, you will be required to verify your identity by separately providing us with a copy of a School-issued ID (such as your student card) or similar documentation and information.
- We Ask To Be Exclusive. You confirm that your listed Items are offered exclusively via Otentu only and are not being offered for sale otherwise.
- Rights You Grant Us. By listing Items on the Service, you hereby grant Otentu a worldwide, transferable, non-exclusive, right and license, with a right to sublicense to: access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast the Items in any form, medium or technology now known or later developed for the purpose of promoting Otentu or the Services.
- We Do Not Pay You for The Rights You Grant Us. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis. Your sole compensation for will be in the form of the Creator Payment (defined below), which is payable only upon the sale of an Item.
- We May List Your Items on Sale. Otentu reserves the right to promote Items through sales campaigns and/or discounts and/or auction programs, which may be lower than the price you have indicated for a certain Item, at its own discretion.
- You May Delist Your Listing. You may delist a listing of an Item from the Service by contacting us or using the delist options available on the Service.
- We Are Responsible for Buyer’s Billing. Otentu will be responsible for collecting billing and shipping information from the Buyer, and for processing payment for such purchases via the Service. Otentu will provide you purchase confirmation (“Confirmation”) and will commission and pay for shipping from your address, as listed in your Account on the Service, to the Buyer’s chosen address.
- We Provide Buyers with Your Certificate of Authenticity. Otentu will also compile an electronic Certificate of Authenticity (CoA) using content you have included in your Account and in the Item’s listing. This certificate will be delivered to the Buyer by Otentu on your behalf, in reliance on your acceptance of these terms and will include your signature as provided during sign-up, for this purpose.
- You Are Responsible for Item Packaging and Shipping. You will be responsible for packaging of the Item (in accordance with packaging guidelines shared by Otentu), printing shipping documents/labels provided to you electronically by the shipper or by Otentu, and for coordinating pickup of the Item by the shipper, through contact information that will be provided in the Confirmation or separately by the shipper. In some cases, the shipper may not be able to pick-up the Item from your listed location, in such case you will be responsible to drop the Item off at the shipper’s pickup location near you. If you decide to bypass our shipping and arrange for your own shipping, you shall be solely responsible for delivery costs and related insurance. You must ship the Item, in packaging compliant with the packaging guidelines, to the Buyer within 48 hours as of receiving the Confirmation. If you do not ship the Item within 48 hours, the sale may be cancelled.
- Your Fee. For sales of Items via the Service, subject to the Buyer not expressing any reservations about the item within 3 days from Buyer receiving the Item, Otentu will credit your PayPal account amount equal to 70% of the Item’s purchase price (“Creator Payment”), this will constitute your full and only consideration for the item. Otentu may give you the option to choose an alternative payment method (such as direct transfer or eChecks) instead of PayPal. The Service will list the fee associated with each payment option. Fees charged for the transfer of the Creator Payment (to Creator’s PayPal or alternative payment method) are shown in the Service when you choose your preferred payment method, such fees will be deducted from the Creator Payment. Creator Payment will be paid in US Dollars. If your account cannot accept US Dollars, and the Creator Payment would require conversion to another currency, any costs related to withdrawal of the funds from your account or any other cost related to the Creator Payment shall be covered solely by the Creator.
- We May Remove, Not List or Require You to Edit Certain Items. Otentu exercises its sole judgment in allowing or disallowing or requiring editing of certain listings of Items. Any Items and/or other User Content (defined below) that Otentu, at its sole discretion deems inappropriate, offensive, disruptive, or illegal are prohibited on the Service, may be removed or delisted, without notice. Otentu reserves the right, but not the obligation, to determine the appropriateness of listings on its Service and remove any User Content, including any listing, at any time. If you create or offer an Item, in violation of these Terms, we reserve the right to take corrective actions, as appropriate, including but not limited to removing the Item, deleting your User Content, deleting your Account, recouping any payments that have been made to you for such Item, and permanently withholding any other payments due and owed to you.
- Tax Forms. Like any marketplace, we are legally obligated to collect and validate a tax form (known as W-9 or W-8) before paying the Creator Payment. Therefore, when your item is shipped or when the funds are ready to be sent to you, Otentu (or a third party on our behalf us) will send you a link to complete or upload the appropriate form. You acknowledge that without these forms being completed we will be unable to pay the Creator Payment. You further acknowledge that if based on your form we are obligated to withhold any sum (tax withholding), this sum will be deduced from the Creator Payment due to you.
- You Are Responsible for Your Taxes. You are solely and exclusively responsible to pay any taxes required by tax authorities in your jurisdiction for income that you generate from sales made via Otentu. Notwithstanding this, for sales shipped to buyers in the United States we will collect, file and pay sales taxes (if such are required to be paid) on your behalf. If your sales are subject to sales taxes and you are a US taxpayer, as established by you submitting a valid W-9 form, we will issue a 1099-K tax form and send it to you after the tax year ends.
- USE OF SERVICE BY BUYERS
If you are a Buyer who wishes to use our Service, you need to be aware of and comply with rules of this Section.
- You Will Purchase Items from Creator Not Otentu. As a Buyer, you may purchase Items that are listed by Creators on the Service. When you purchase such an Item through the Service, you are purchasing the Item from the Creator identified on the listing for such Item and not from Otentu. Otentu acts as a venue to allow Buyers to buy Items from Creators for a fixed price. Prices for Items will be as specified on the applicable listing. As a result, Otentu has no control over the quality, safety, morality or legality of any aspect of the Item, the truth or accuracy of the listings or the ability of Creators to sell Items.
- Rights Remain with the Creator. The acceptance of the item by the Buyer transfers the ownership of the specific item, which is declared by the Creator to be a one-of-kind original item personally created by the creator, from the Creator to the Buyer. Nevertheless, the Creator retains all intellectually property related to the Item including but not limited to the right to create:
- Other original items inspired by the Item,
- Limited edition or other replicas of the item, provided that such items are clearly presented as such.
- Other original items inspired by the Item,
- Cost Of Shipping. Cost for shipping will be presented on the Service, and may include several options for you to choose from. Certain Items (including, but not limited to, large Items) may require additional shipping and handling charges and special arrangements.
- Insurance. Unless otherwise specified explicitly the items are insured in transit based on the courier’s standard insurance. The Service may provide additional insurance options for the Buyer to choose from.
- Items Are Shipped Directly by Creators to You. The Creator will ship the purchased Items directly to you.
- You have 3 Days to Submit Any Reservations to Us. As a Buyer you must, as soon as you receive the order, check the condition of the Item and submit any reservation immediately and in writing, within 3 days at the most, to Otentu.
- Prices Do Not Include Taxes. Unless explicitly stated otherwise, prices of Items do not include any applicable Taxes (defined below) including VAT/GST and customs, if any. You may be required to pay Taxes applicable in your country separately, upon receipt of the Item.
- We May Cancel Your Order. Otentu may cancel any order for an Item via the Services upon its sole discretion. If Otentu cancels an order placed via the Service, Otentu will send you an email notice of such cancellation and you will not be charged for your order. If already charged you will be refunded in full.
- You May Return a Purchased Item. You may return any Item which was not purchased on a sale, discount campaign or via an auction, within 3 days from receipt, provided that it is returned to the Creator in its original condition and packaging and that you pay for the return shipping based on the same service that the item was delivered through. Items that have been altered i.e (stretched, cropped, and/or otherwise modified) after purchase are not returnable. For more information on how to return an Item, please contact us at email@example.com.
- Creators Want to Know Who Holds Their Creations. Creators are interested to know and keep record of who owns the pieces they create. They will be provided with your name and address when you order their Items, since they ship the items to you. It is customary to inform when an original item they created is sold or passed on to another person. We ask that if you sell or otherwise transfer the item to another person or entity, you inform Otentu, so that we can update the item’s Creators accordingly.
- Our Service is Free of charge. Creating an Account and accessing the Service for the purpose of browsing Items is not subject to a fee. As a Buyer you only pay for the Item you purchased via the Service. There are no subscription fees for sales by Creator or for purchase by Buyer.
- Fee Charged from Creators. Otentu will collect a fee (as detailed above) from Creators only. The fee will be charged from the price paid for an Item purchased through the Services.
- We May Offer Subscription-Based Service. We may offer additional subscriptions-based services through the Service, which you may choose to register to. If any portion of the Service is provided through a subscription, this part of the Service only, will be subject to subscription fees at the rates and schemes determined according to the plan you select and based on pricing and service information presented to you when you register for the Services ("Subscription-Based Service"). You will be required to pay for the Subscription-Based Service through one of the payment methods we establish from time to time. By providing us with payment information for a payment method, you confirm that your payment method will be charged for the applicable fees. You are responsible for any commission or surcharges introduced by your selected payment method.
- Subscription-Based Services Renew Automatically. The Subscription-Based Service is a periodic subscription plan that automatically renews at the end of each subscription period, unless you cancel your subscription before the subscription renews. Your payment method will be charged for the periodic fees due upon the start of each renewed subscription period. You must keep the billing information you provided to us upon registration current, complete, and accurate, and notify us promptly in case of any change in your billing information.
- No Refund for Subscription-Based Service. Unless otherwise mandated by law, all your payments for Subscription-Based Service, if any, are non-cancelable, and all amounts paid in connection therewith are non-refundable. You are solely responsible for paying all applicable fees for the Subscription-Based Service that you subscribed for, whether or not you used or benefited from the Service.
- Failing to Pay for Subscription-Based Service. If you fail to settle your payments that are due for the Subscription-Based Service, we may discontinue and block your use of the Service, without regard to any other remedies available to us under applicable law.
- CURRENCY AND TAXES
Unless explicitly stated otherwise, all prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Service, are stated in U.S. dollars and do not include any sales, use, value added (“VAT”), goods and services (“GST”) or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, “Taxes”).
- If you are a Creator, you acknowledge that Otentu may withhold the Taxes required to be withheld from the payments Otentu makes to you.
- If you are a Buyer, you acknowledge that Taxes including VAT or GST may be added to the amounts charged, when required or when allowed to do so.
Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes including VAT. Each party will cooperate with the other party and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
- USER CONTENT
Whether you are a Creator or Buyer, you may share content via the Service (“User Content”). If you choose to share User Content (such as: posts, comments, photos, videos Item description), you will be responsible for such content and you allow us to use it.
- User Content Is Yours and You Have Rights To Share It. You are solely responsible for any User Content you provide. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Content that you submit, post or display on or through the Services. Any User Content will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant the licenses described above.
- Our Rights in User Content. You permit the use of User Content by us. You hereby grant Otentu a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, and display, such User Content (in whole or in part) for the purposes of (i) providing the Service, including making User Content available to other users in accordance with your elections on the Service; and (ii) improving the Service. We need to have these rights to be able to provide the Services and sell your Items.
- Other Users’ Rights in User Content. You also hereby grant each other user of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display and perform such User Content solely as permitted through the functionality of the Services and under these Terms.
- We Take No Responsibility for Any User Content. We take no responsibility for the User Content posted or shared via the Services, although we reserve the right to remove any User Content that is in violation of these Terms.
- INTELLECTUAL PROPERTY
- We Have Intellectual Property Rights in the Services. All rights, title and interest in and to the Services, including without limitation, patents, copyrights, trademarks, trade names, Services marks, trade secrets and other intellectual property rights and any goodwill associated therewith are the exclusive property of Otentu. This includes the Services, Site or App design, graphics, computer code, “look and feel” and Otentu’s domain names.
- Do Not Infringe Our Intellectual Property. You may not copy, distribute, display or perform publicly, make available to the public or communicate to the public, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use of, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of the Site, App or the Services or any part thereof, in any way or by any means. You may not use any name, mark, logo or domain name that is confusingly similar to our marks, logos and Internet domain names. You must refrain from any action or omission that may dilute or damage our goodwill. You shall not develop any services or products which rely on or make use of the look and feel of our Services, Site or App.
- Do Not Share Our Trade Secrets. Our Service consists of our trade secrets, which include practices, processes, designs, and product and pricing schedules not generally known or reasonably ascertainable by others by which we obtain an economic advantage over others. Do not share information you are exposed to through your use of the Services relating to its operation, functionality, features, designs, and business practices. Please protect our trade secrets in the same way you protect your own similar assets, but in no event less than reasonable care. You must not use or disclose that information for any purpose other than within your utilization of Services.
- SUPPORT AND MAINTENANCE
We Try to Support You in Technical Problems. If you face technical issues related to the Service, we, either directly or with the assistance of third parties, may provide you technical support for technical questions, problems and inquiries regarding the Services, during the business days and hours and through the support channels indicated on our Site.
We will attempt to respond to your technical questions, problems and inquiries within a reasonable time. However, we
- May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;
- Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
For the purpose of providing technical support, we will need you to cooperate and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
- You May Terminate Your Account. If you have created an Account, you may, at any time, terminate your Account by deactivating it or by contacting us at firstname.lastname@example.org.
- We May Terminate Your Account. We may also temporarily or permanently limit, block your access to or terminate your Account, if we determine that you breached these Terms or for other reasons.
- Stop Using the Service When your Account is Terminated. Upon termination of these Terms or your Account, for any reason, your right to use the Services is terminated and you must immediately cease using the Services, and we will not be liable to you for termination of access to the Service.
- We May Terminate the Services. We may at any time discontinue or terminate the operation of the Services, or any part thereof, temporarily or permanently, for all users, or for certain users.
- We May Change These Terms. Otentu reserves the right, at its sole discretion, to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Services after we have posted a modification on the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you should stop using the Services. We encourage you to check back regularly to review these Terms.
- We May Change These Services. We reserve the right to change, modify or discontinue, and restrict or block access to the Services without notice to you. We may modify or remove any Items from the Services at any time without notice to you, including the removal of any Items or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
- We May Make Changes Related to Listed Items. We reserve the right, with or without prior notice, to: change descriptions or references to Items, limit the available quantity of any Items, or prices of Items.
- DISCLAIMER OF WARRANTY
There are Service-related matters that we are not responsible and cannot be held liable for.
- WE ARE NOT RESPONSIBLE FOR ITEMS. THE ITEMS DISPLAYED THROUGH THE SERVICES ARE NOT OWNED BY OTENTU AND ARE ONLY DISPLAYED BY OTENTU FOR INFORMATION PURPOSES. OTENTU CANNOT AND DOES NOT MAKE ANY WARRANTIES ABOUT THE ITEMS QUALITY, SAFETY, OR EVEN THEIR LEGALITY. ANY LEGAL CLAIM RELATED TO AN ITEM MUST BE BROUGHT DIRECTLY TO CREATOR OF THE ITEM. YOU RELEASE OTENTU FROM ANY KIND OF CLAIMS RELATED TO ITEMS LISTED AND SOLD THROUGH OUR SERVICES. OTENTU DISCLAIMS ANY WARRANTY AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSACTION THAT MAY OR MAY NOT TAKE PLACE BETWEEN CREATOR AND BUYER.
- WE DO NOT GUARANTEE THAT OUR SERVICES HAVE NO FAULTS. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS AND AFFILIATES (THE “STAFF”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ITS CONTENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, ENHANCED GOODWILL OR EXPECTED BENEFITS.
WE DO NOT WARRANT THAT (1) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS IN ANY WAY; (2) THE SERVICES WILL ALWAYS BE AVAILABLE OR FREE FROM MALWARES, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; (3) THE QUALITY OF THE SERVICES WILL MEET YOUR EXPECTATIONS; (4) THE DATA PRESENTED THROUGH THE SERVICES WILL BE ACCURATE, BENEFICIAL OR RELIABLE; (5) THE RESULTS OF THE USE OF THE SERVICES WILL BE SATISFACTORY AND WILL FIT YOUR EXPECTATIONS OR REQUIREMENTS.
- OUR WARRANTIES ARE ONLY PROVIDED HERE IN THESE TERMS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, OR THE CONTENT PRESENTED ON OR THROUGH THE SERVICES, WHETHER OR NOT MADE BY ANY OF OUR STAFF, WHICH IS NOT EXPRESSLY CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY THE INVOLVED PERSONS FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF OUR STAFF WHATSOEVER.
- YOUR USE OF SERVICE IS AT YOUR OWN RISK. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICES IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
- LIMITATION OF LIABILITY
We will not be liable in certain cases, and in any event, our liability is limited.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR STAFF, SHALL NOT BE LIABLE, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE CONTENT, THE USE OF, OR THE INABILITY TO USE THE SERVICES OR ITS FEATURES, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICES, OR FROM ANY FAULT, OR ERROR MADE BY OUR STAFF, OR FROM YOUR RELIANCE ON DATA AVAILABLE ON OR THROUGH THE SERVICES, OR FROM ANY DENIAL OR CANCELLATION OF YOUR ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR DATA ON THE SERVICES.
IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL, MAXIMUM AND AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES SHALL BE LIMITED TO THE GREATER OF (A) $100 OR (B) THE SUM INSURED AND RECOVERED FROM THE SHIPPING INSURNACE HE FEES YOU PAID US (IF ANY) IN THE TWELVE MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
IF BUYER WAS OFFERED TO PURCHASE SHIPPING INSURANCE AT CHECK OUT AND OPTED NOT TO, AND THE ITEM WAS DAMAGED OR LOST WHILE AT SHIPPING, WE AND OUR STAFF, SHALL NOT BE LIABLE FOR ANY SHIPPING RELATED DAMAGE. IN ANY EVENT, TO THE EXTENT PREMITTED BY APPLICABLE LAW, OUR TOTAL AND MAXIMUM LIABILITY FOR SHIPPING RELATED DAMAGES SHALL BE LIMITED TO THE COVERAGE PROVIDED BY COURIER.
If we get sued due to your act or omission, you will have to defend and indemnify us.
To the maximum extent permitted by law, you will indemnify, defend, and hold harmless at your own expense, us, our staff and anyone acting on our behalf, from and against any damages, costs and expenses, resulting from any claim, allegation or demand, connected with your use of the Services, your breach of these Terms or infringement or violation of any other person’s rights (including privacy).
- Governing Law, jurisdiction and dispute resolution
If you have any issues, allegations or claims, we encourage you to contact us. If we cannot reach a resolution, the rules of this section shall apply to our dispute.
- Governing Law. Regardless of your place of residence or where you access or use the Services from, these Terms and your use of the Services will be governed by and construed solely in accordance with the laws of the Delaware, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the Laws of Delaware.
- ARBITRATION. ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES BETWEEN YOU AND OTENTU REGARDING THESE TERMS OR THE USE OF THE SERVICES, WHICH ARE NOT AMICABLY RESOLVED, SHALL BE SETTLED THROUGH BINDING ARBITRATION (RATHER THAN IN COURT) BY TELEPHONE, ONLINE OR BASED SOLELY UPON WRITTEN SUBMISSIONS WITHOUT IN-PERSON APPEARANCE, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA), UNDER ITS CONSUMER ARBITRATION RULES (WHICH ARE AVAILABLE AT WWW.ADR.ORG).
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
HOWEVER, YOU MAY LODGE CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIM QUALIFIES.
THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THESE TERMS.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES) AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
- COSTS OF ARBITRATION. PAYMENT OF FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA'S CONSUMER ARBITRATION RULES. THESE FEES WILL BE SHARED AS FOLLOWS: ONE THIRD BY YOU AND TWO THIRDS BY US, UNLESS THE ARBITRATOR: (I) DETERMINES THAT THE CLAIMS ARE FRIVOLOUS, IN WHICH CASE THE CLAIMANT SHALL BEAR ALL SUCH FEES ARISING FROM THE FRIVOLOUS CLAIM; OR (II) DETERMINES THAT THE FEES SHOULD BE ALLOCATED DIFFERENTLY.
- NO CLASS OR COLLECTIVE PROCEEDINGS. YOU AND OTENTU HEREBY ACKNOWLEDGE, AGREE AND COVENANT THAT ANY DISPUTES SHALL ONLY BE ADJUDICATED IN ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT IN CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS.
- IF YOU DO NOT AGREE TO ARBITRATION LET US KNOW. YOU MAY OPT-OUT OF THE ABOVE ARBITRATION CLAUSE BY EMAILING US TO SUPPORT@OTENTU.COM WITHIN 21 DAYS OF YOU ENTERING INTO THESE TERMS FOR THE FIRST TIME, AN OPT-OUT NOTICE THAT IDENTIFIES YOURSELF AND CLEARLY SETS OUT YOUR CHOICE TO OPT OUT OF DISPUTE RESOLUTION BY ARBITRATION. IN CASE OF SUCH OPT-OUT, ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES BETWEEN YOU AND US REGARDING THESE TERMS OR THE USE OF THE SERVICES, WHICH ARE NOT AMICABLY RESOLVED, SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS IN DELAWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, EITHER PARTY MAY FILE: (A) AN IMPLEADER CLAIM AGAINST THE OTHER PARTY IN ANY COURT OF COMPETENT JURISDICTION ADJUDICATING A THIRD PARTY CLAIMS THAT IS SUBJECT TO THE INDEMNIFICATION PROVISIONS HEREIN; (B) IN ANY COURT OF COMPETENT JURISDICTION A CLAIM CONCERNING THE INFRINGEMENT (OR ALLEGED INFRINGEMENT) OF INTELLECTUAL PROPERTY RIGHTS (INCLUDING COPYRIGHTS AND TRADE SECRETS).
- No Assignment Allowed. You may not assign or transfer your rights and obligations under these Terms without our prior written consent. Any attempted or actual assignment by you, without our prior written consent, shall be null and void.
- We May Change Our Ownership. In the event of a sale, merger, or acquisition, we may, upon notice to you and without obtaining your consent, assign and delegate these Terms, including all of our rights, performances, duties, liabilities and obligations contained herein, to a third party, and we will be released from all rights, performances, duties, liabilities and obligations contained herein.
- If One Provision is Invalid, Other Provisions are Still Valid. If any provision of these Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law to reflect as closely as possible, the original intention of that provision, and the remaining provisions of these Terms shall continue to remain in full force and effect.
- Section Heading are for Convenience. The section headings in these Terms are included for convenience only and shall take no part in the interpretation or construing of these Terms. Whenever used in these Terms, the term "Including", whether capitalized or not, means without limitation to the preceding phrase. All examples and e.g. notations are illustrative, not exhaustive.
- These Terms are Full Binding Contract. These Terms constitute the entire agreement between you and us concerning the subject matter herein and supersede all prior and contemporaneous negotiations and oral representations, agreements and statements.
- The Clauses That Will Survive. The following clauses in these Terms will survive any termination or expiration of the Terms: Currency and Taxes; No Refunds; Our Intellectual Property; Restrictions; Confidentiality; Disclaimer of Warranty; Limitation of Liability; Indemnification; Governing Law, Jurisdiction and Dispute Resolution.
- Waivers. No waiver, concession, extension, representation, alteration, addition or derogation from these Terms by us, or pursuant to these Terms, will be effective unless consented to explicitly and executed in writing by our authorized representative. Failure on our part to demand performance of any provision in these Terms shall not constitute a waiver of any of our rights under these Terms.
- Our Relationship. These Terms do not create any agency, partnership, employment or fiduciary relationship between you and us.
At any time, you may contact us with any question, request, comment or complaint that you may have with respect to the Services or these Terms, at email@example.com, or through our phone support as indicated on our website at www.otentu.com.