Terms of Service Agreement
Effective: June  2017
THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. Acceptance of the Terms and Conditions. Obsidian provides and makes available this Site subject to the terms and conditions of these Terms. Please read these Terms carefully. By accessing, browsing or otherwise using the Site, you acknowledge that you have read, understood, and agree to be bound by these Terms If you do not accept these Terms, you shall not access, browse or use the Site. You understand and agree that we may change these Terms at any time without prior notice. The revised Terms will become effective at the time of posting. Any use of the Site after such date shall constitute your acceptance of such revised Terms. If any change to these Terms is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Site.
2. Use of the Site.
2.1 This Site contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third-parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as permitted under these Terms. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
2.2 The trademarks, service marks, and logos of Obsidian (the “Obsidian Trademarks”) used and displayed on this Site are registered and unregistered trademarks or service marks of Obsidian. Other company, product, and service names located on the Site may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the Obsidian Trademarks, the “Trademarks”). Nothing on this Site or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Site without the prior written consent of Obsidian specific for each such use. The Trademarks may not be used to disparage Obsidian or the applicable third-party, Obsidian’s or third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without Obsidian’s prior written consent. All goodwill generated from the use of any Obsidian Trademark shall inure to Obsidian’s benefit.
2.3 You agree not to: (a) take any action that imposes an unreasonable load on the Site’s infrastructure, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Web Site, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site, (d) delete or alter any material posted on the Site by Obsidian or any other person or entity, or (e) frame or link to any of the materials or information available on the Site.
2.4 The Site contains links to third-party web sites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
2.5 Certain elements of the Web Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 2.1 of these Terms. None of the Content for this Site may be retransmitted without the express written consent from Obsidian for each and every instance.
3. Limitation of Liability and Disclaimer of Warranties.
3.1 OBSIDIAN, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “OBSIDIAN PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE OBSIDIAN PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SITE AND THE CONTENT AT YOUR OWN RISK. THE OBSIDIAN PARTIES DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR‑FREE OR THAT THE SITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO OBSIDIAN PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS. THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE OBSIDIAN PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON‑INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
3.2 IN NO EVENT SHALL ANY OBSIDIAN PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH OBSIDIAN PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE OBSIDIAN PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
3.4 The foregoing limitations on liability and any other limitations of liability set forth herein are not applicable to residents of New Jersey. With respect to residents of New Jersey, Obsidian shall not be liable for any damages arising out of your access to or use of the Site, unless such damages are the result of our negligent or reckless acts or omissions; provided, however, that we shall not be liable for consequential, indirect or punitive damages.
4. Indemnification. You agree to defend, indemnify, and hold harmless the Obsidian Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms or your access to, use or misuse of the Content or Site. Obsidian shall provide notice to you of any such claim, suit, or proceeding. Obsidian reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Obsidian’s defense of such matter.
5. Termination of these Terms. Obsidian reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms and your access to all or any part of the Site or the Content at any time and for any reason without prior notice or liability. Obsidian reserves the right to change, suspend, or discontinue all or any part of the Site or the Content at any time without prior notice or liability. Sections 2 (Use of the Site), 3 (Limitation of Liability and Warranty), 4 (Indemnification), 5 (Termination of these Terms), and 9 (Miscellaneous) shall survive the termination of this Agreement.
6. User Must Comply with Applicable Laws. This Site is based in Oregon, USA. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
7. U.S. Government Restricted Rights. The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Site or Content by the Government constitutes acknowledgement of our proprietary rights in the Site and Content.
8. Dispute Resolution By Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Obsidian, whether arising out of or relating to the Terms (including any alleged breach thereof), the Site, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into the Terms, you and Obsidian are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND OBSIDIAN AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND OBSIDIAN AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: Obsidian is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Obsidian should be sent to 520 Newport Center Drive #200, Newport Beach, CA 92660 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Obsidian and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Obsidian may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Obsidian or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Obsidian is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Obsidian and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Obsidian agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Obsidian will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Obsidian will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Obsidian will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: Without limiting the severability provision in this section of these Terms, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than the Prohibition of Class and Representative Actions and Non-Individualized Relief section above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief section is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms to the contrary, Obsidian agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Obsidian written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
9. Miscellaneous. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of Obsidian to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Obsidian unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Obsidian and you, this Agreement constitutes the entire Agreement between you and Obsidian with respect to the subject matter, and supercedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. These Terms will inure to the benefit of our successors, assigns, licensees, and sublicensees.