Effective Date: November 1, 2021
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
TABLE OF CONTENTS
- Access to the Site
- Certain Restrictions
- No Support or Maintenance
- User Content
- Acceptable Use Policy
- Indemnity and Release
- Third-Party Links & Ads
- Other Users
- Warranty Disclaimer
- Legal and Financial Information
- Limitation on Liability
- Term and Termination
- Changes to Terms
- Applicable Law
- Arbitration Agreement
- Applicability of Arbitration Agreement
- Notice Requirement and Informal Dispute Resolution
- Arbitration Rules
- Additional Rules for Non-Appearance Based Arbitration
- Time Limits
- Authority of Arbitrator
- Waiver of Jury Trial
- Waiver of Class or Consolidated Actions
- Right to Waive
- Emergency Equitable Relief
- Claims Not Subject to Arbitration
- Electronic Communications
- Entire Terms
- Contact Information
ACCESS TO THE SITE
Subject to these Terms, OPA grants you a non-transferable, non-assignable, non-exclusive, revocable, limited license to access the Site solely for your own personal, non-commercial use only. All rights not expressly granted by OPA herein are reserved. Nothing on the Site or in these Terms grants, expressly or implicitly, by estoppel or otherwise, any right or license to use any Site content or other materials of any third party or may be construed to mean that OPA has the authority to grant any license on behalf of any third party.
The rights provided to you in these Terms are subject to the following restrictions: (a) you shall not sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site; (b) you shall not hack, change, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means unless otherwise indicated. Any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site must be retained on all copies thereof.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site, whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to the Site.
OPA reserves the right to change, suspend, or cease the Site with or without notice to you. You approved that OPA will not be held liable to you or any third-party for any change, interruption, or termination of the Site or any part.
NO SUPPORT OR MAINTENANCE
You agree that OPA will have no obligation to provide you with any support in connection with the Site.
OPA trademarks, including the trademarks “One Perfect for America,” the logo, all page headers, graphics, images, symbols, trade names and other OPA marks found on our Site are the proprietary property of OPA. Use of these trademarks is strictly prohibited without the prior written consent of OPA.
The trademarks of third parties may also appear on the Site from time to time; you may not use these trademarks without prior written permission of their respective owners. You acknowledge and agree that nothing on the Site grants, expressly or implicitly, by estoppel or otherwise, any right or license to use any of these trademarks, nor may anything be construed to mean that OPA has authority to grant any right or license on behalf of any third-party trademark owner.
“User Content” means any, and all information and content that a user submits to the Site. You are exclusively responsible for your User Content. You bear all risks associated with use of your User Content. You hereby certify that your User Content does not violate our Acceptable Use Policy. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by OPA. Because you alone are responsible for your User Content, you may expose yourself to liability. OPA is not obliged to backup any User Content that you provide; also, your User Content may be deleted at any time without prior notice to you. You are solely responsible for making your own backup copies of your User Content if you desire.
Excluding any User Content that you may provide, you are aware that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by OPA or OPA’s suppliers. Note that these Terms and access to the Site do not give you any rights, title or interest in or to any intellectual property rights, except for the limited access rights expressed in the section titled “Access to Site.”
ACCEPTABLE USE POLICY
The following terms constitute our “Acceptable Use Policy”: You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right or any intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
We reserve the right to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account and/or reporting you to law enforcement authorities.
If you provide OPA with any feedback or suggestions regarding the Site (collectively, the “Feedback”), you hereby assign to OPA all rights in such Feedback and agree that OPA shall have the right to use and fully exploit such Feedback and related information in any manner it believes appropriate. OPA will treat any Feedback you provide to OPA as non-confidential and non-proprietary.
INDEMNITY AND RELEASE
You agree to indemnify and hold OPA and its officers, employees, and agents harmless, including costs and attorneys’ fees, from any claim or demand made by any third-party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. OPA reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of OPA. OPA will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge OPA and our officers, employees, agents, successors, and assigns from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature, that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “a general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
THIRD-PARTY LINKS & ADS
The Site may contain links to third-party websites and services, and/or display advertisements for third parties. Such third-party links and ads are not under the control of OPA, and OPA is not responsible for any third-party links or ads. OPA provides access to these third-party links and ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any third-party links and ads. You use all third-party links and ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the third-party links and ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices.
Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. You agree that OPA will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND OPA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. OPA and its affiliates do not guarantee that the site will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. If applicable law requires any warranties with respect to the site, all such warranties are limited in duration to ninety (90) days from the date of first use.
You acknowledge and agree that any reliance on the information and other materials included on the Site shall be at your sole risk and responsibility. OPA reserves the right, in its sole and absolute discretion, to correct any errors or omissions in any part of the Site and to make changes to the services, materials, programs and features included therein at any time with or without notice.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
Legal and Financial Information
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL LEGAL AND FINANCIAL INFORMATION PROVIDED ON THE SITE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY OPA OR BY OTHER USERS OR THIRD PARTIES, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (i) THE ADVICE OF YOUR LAWYER, FINANCIAL ADVISOR OR OTHER LEGAL OR FINANCIAL PROFESSIONALS, (ii) A VISIT, CALL OR CONSULTATION WITH YOUR LAWYER, FINANCIAL ADVISOR OR OTHER LEGAL OR MEDICAL PROFESSIONALS, OR (iii) INFORMATION CONTAINED ON OR IN ANY LEGAL OR FINANCIAL DOCUMENT. PLEASE CONSULT WITH YOUR LAWYER, FINANCIAL ADVISOR OR OTHER LEGAL SERVICES OR FINANCIAL SERVICES PROVIDER IF YOU HAVE LAW-RELATED OR FINANCE-RELATED QUESTIONS BEFORE USING ANY OF OUR SERVICES OR RELYING ON ANY INFORMATION YOU OBTAIN ON THE SITE.
LIMITATION ON LIABILITY
To the maximum extent permitted by law, in no event shall OPA or its suppliers be liable to you or any third-party for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to these terms or your use of, or incapability to use the site even if company has been advised of the possibility of such damages. Access to and use of the site is at your own discretion and risk, and you will be solely responsible for any damage to your device or computer system, or loss of data resulting therefrom.
To the maximum extent permitted by law, notwithstanding anything to the contrary contained herein, our liability to you for any damages arising from or related to this agreement, will at all times be limited to a maximum of fifty US dollars ($50 USD). The existence of more than one claim will not enlarge this limit. You agree that our suppliers will have no liability of any kind arising from or relating to this agreement.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
TERM AND TERMINATION
OPA may suspend or terminate your rights to use the Site at any time for any reason at its sole discretion, including for any use of the Site in violation of these Terms. You may also terminate your account with the Site at any time. You understand that any termination of your account may or may not involve deletion of your User Content associated with your account from OPA’s live databases. OPA will not have any liability whatsoever to you in connection with a termination of your account. Even after your account is terminated and you cease to use or access the Site, these Terms remain in effect as applicable.
CHANGES TO TERMS
These Terms are subject to amendment or modification at any time. When the Terms have been updated, we will post a notice of the changes to our Site prominently on the front page and we will update the effective date posted to the page. Continued use of our Site following the posting of an amended Terms shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of the updated Terms.
These Terms and any dispute that may arise between you and OPA shall be governed by and construed in accordance with the Federal Arbitration Act, applicable law and the laws of the Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provision of rule (whether of the Commonwealth of Massachusetts or any other jurisdiction).
Please read this Arbitration Agreement section (the “Arbitration Agreement”) carefully. It is part of your contract with OPA and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement
All claims and disputes in connection with the Terms that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and OPA, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) providing the name and contact information for the party giving the notice and describing the nature and basis of the claim or dispute and the requested relief. A Notice to OPA should be sent to: One Percent for America, 10 Malcolm X Blvd, Ground Floor, Roxbury, MA 02119. After the Notice is received, you and OPA may attempt to resolve the claim or dispute informally. If you and OPA do not resolve the claim or dispute within thirty (30) days after the Notice is received, you agree that the dispute must be resolved by binding arbitration rather than by a court. You agree to binding arbitration in Norfolk County, Massachusetts. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award to which either party is entitled.
Arbitration shall be initiated through the American Arbitration Association, an established alternative dispute resolution provider that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that OPA made to you prior to the initiation of arbitration, OPA will pay you the greater of the award or $2,500.00. Each party shall bear its own costs and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration
If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
If you or OPA pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator
If arbitration is initiated, the arbitrator will decide the rights and liabilities of you and OPA, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and OPA.
Waiver of Jury Trial
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less expensive than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and OPA in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions
All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
All aspects of the arbitration proceeding shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Right to Waive
Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Emergency Equitable Relief
Anyhow the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration
Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Netherlands County, California, for such purposes.
The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from OPA, or any products utilizing such data, in violation of the United States export laws or regulations.
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
The communications between you and OPA use electronic means, whether you use the Site or send us emails, or whether OPA posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from OPA in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OPA provides to you electronically satisfy any legal obligation that such communications would satisfy if it as it were to be in hard copy writing.
These Terms constitute the entire agreement between you and us regarding the use of the Site. OPA’s failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these Terms is held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to OPA is neither that of an agent nor partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without OPA’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. OPA may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
For questions or concerns regarding these Terms, please contact us as follows:
Address: One Percent For America, 10 Malcolm X Blvd, Ground Floor, Roxbury, MA 02119