Terms
and Conditions

HELLOOTTER LLC
TERMS AND CONDITIONS OF SERVICE
Welcome to HelloOtter!

These terms and conditions are a legal agreement (this “Agreement”) between you (together with the business entity, if any, that you represent, “You” or “Your”) and HelloOtter LLC (“HelloOtter” or “we”, “us” or “our”), a Delaware limited liability company, establishing terms and conditions under which You shall access and use the services and features (the “Services”) available on HelloOtter’s web-based communication platform (the “HelloOtter Platform”) and through downloadable mobile or other applications made available by HelloOtter from time to time (“Apps”). The Services include videoconferencing services with interactive features such as customizable appearances and backgrounds and the ability for users to purchase and exchange virtual gifts. The HelloOtter Platform is located at https://hellootter.com and its subdomains (the “Website(s)”). The date You first agree to this Agreement is referred to herein as the “Effective Date.” Your use of the Services, the Website, the HelloOtter Platform and any Apps is also subject to our Privacy Policy available on our Website from time to time. You acknowledge and agree that the Services, HelloOtter Platform and Apps are in the early stages of development and that the features and their functionality are expected to change frequently.

BEFORE YOU CLICK ON THE “I ACCEPT”, “SIGN UP” OR SIMILAR BUTTON, ACCESS THE WEBSITE OR DOWNLOAD ANY APPS OR USING THE SERVICES, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” , “SIGN UP” OR SIMILAR BUTTON, ACCESSING THE WEBSITE, DOWNLOADING ANY APPS, OR USING THE SERVICES, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT, IF ANY, ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT, IF ANY. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE SERVICES FROM YOU ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT”, “SIGN UP” OR SIMILAR BUTTON AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES OR DOWNLOAD THE APPS. IF YOUR EMPLOYER HAS A SEPARATE AGREEMENT WITH HELLOOTTER FOR A CORPORATE SUBSCRIPTION (“CORPORATE AGREEMENT”), THAT CORPORATE AGREEMENT WILL SUPERSEDE ANY CONFLICTING TERMS OF THIS AGREEMENT WITH RESPECT TO YOUR ACCESS AND USE AS AN EMPLOYEE OF SUCH CORPORATE SUBSCRIBER.
FURTHER, THESE TERMS AND CONDITIONS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND HELLOOTTER ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 9 “AGREEMENT TO ARBITRATE”). HELLOOTTER SERVICES AND PRODUCTS.

Access to and Use of the Services. Subject to the terms and conditions of this Agreement, HelloOtter hereby grants You, during the relevant subscription period for the Services agreed in connection with Your registration on the Website (“Subscription Term”), a limited, revocable, non-exclusive, non-transferable right for You to access and use the Services (whether or not through the HelloOtter Platform or related Apps), solely for Your personal, non-commercial use or for Your business use in connection with a Corporate Agreement or as otherwise agreed by You and HelloOtter through the HelloOtter Platform from time to time. You are responsible for obtaining, deploying and maintaining all computer hardware, software, microphones, webcams, headsets, modems, routers and other communications equipment necessary for You to access and use the Services via the Internet.

Purchase of Products. Certain virtual products (“Products”) will be available for Your purchase through the Services from time to time. Your subscription to the Services may include a specified number of virtual tokens for exchange for Products from time to time during the applicable Subscription Term. Unless otherwise provided on our Website from time to time, Your Products are solely for Your own use and are not for provision to third parties. Virtual Products will be available for use only with our Services for the duration of your Subscription Term or such other period as may be agreed by You and HelloOtter in connection with Your purchase of such Product. All purchases of Products are non-cancellable and non-refundable. Our Website may provide other terms and conditions applicable to specific Products from time to time.

No Access to Emergency Services and Not for Hazardous Uses. The Services are not intended to support or carry emergency calls to medical care providers, law enforcement agencies, or any other emergency services nor for any hazardous uses. It is your responsibility to make alternative communications arrangements to ensure that you can make emergency calls if needed. You should use other third party communication services for any hazardous uses. The Services do not serve as a replacement for your primary telephone service.

Eligibility. In order to access and use the Services and Products, You must be 13 years of age or older. Younger users may access and use the Services only with the approval and management of their parent or legal guardian.

Registration; Login Credentials. You will be required to register with HelloOtter in order to access and use the Services and Products. In order to register, You will be required to share certain information with HelloOtter (“Registration Information”). HelloOtter reserves the absolute and unrestricted right to reject or terminate the registration of You or any other user, for any reason in HelloOtter’s sole discretion. HelloOtter will enable You to create a user login and password for access and use of the Services and Products (“Login Credentials”). You are responsible for maintaining the confidentiality of Your Login Credentials and for any and all access and use of the Services and Products that occurs under Your Login Credentials. You agree to immediately notify HelloOtter of any unauthorized use of Your Login Credentials.

Restrictions. You shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the HelloOtter Platform or Apps; (ii) modify, translate, or create derivative works based on any element of the HelloOtter Platform, Apps or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Your rights to use the Services; (iv) use the Services for the benefit of any person or entity other than for Your benefit; (v) remove any proprietary notices from any content You receive through the Services; (vi) publish or disclose to third parties any evaluation of the Services without HelloOtter’s prior written consent; (vii) use the Services for any purpose other than their intended purpose; (viii) interfere with or disrupt the integrity or performance of the Services; (ix) use any ‘robots’, ‘spiders’ or other methods to extract or copy bulk content from the Website or Apps; or (x) attempt to gain unauthorized access to the Services.

Security. HelloOtter will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Registration Information or content sent or transmitted by You or displayed or uploaded by You in using the Services (“Your Content”). HelloOtter will exercise reasonable efforts to deploy corrections within the HelloOtter Service for security breaches made known to HelloOtter. However, You acknowledge that, notwithstanding the security precautions deployed by HelloOtter, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Your Registration Information or Your Content. HelloOtter cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.

Quality. HelloOtter cannot guarantee that the Services or Website will always function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the Services and Website, and may result in the failure of your communications including but not limited to: your local network, firewall, your Internet service provider, the public Internet, the public switched telephone network and your power supply. HelloOtter takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.

Advertisements. You agree and acknowledge that You may be provided with advertisements on the HelloOtter Platform in connection with the Services from time to time.

YOUR RESPONSIBILITIES, GRANT AND INTERACTIONS.

Registration Information and Your Content. You warrant, represent and covenant to HelloOtter that (i) all Registration Information shall be correct and complete when provided and that You shall update such Registration Information when errors are identified and (ii) You have the right to provide the Registration Information and Your Content to HelloOtter for the purposes set forth herein, without misappropriation, violation or infringement of any third party intellectual property rights and the provision of such information complies with all applicable laws and regulations. You further grant to HelloOtter a royalty-free, nonexclusive right and license to use Your Registration Information and Your Content, (a) in order to provide the Services, display Your Content to other users of the Services and to enable other users of the Services to download Your Content from time to time; (b) to analyze and improve the Services; and (c) to compile and use aggregate or de-identified data, statistics, measurements or other metrics derived from Your use of the Services (including in combination with the aggregate or de-identified customer data of other users of the Services) for its own purposes.

Interactions between You and Other HelloOtter Users are at Your Risk. HelloOtter is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Services. By using the Services, you agree that any content that you submit may be transmitted to the recipient of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights owned by third parties.

Communication through the Services; Prohibited Conduct. You are responsible for the content you choose to communicate and access using the Services. By accessing our Website or Services (whether through the HelloOtter Platform or Apps) or any communications methods enabled through our Website or Services, in addition to the other restrictions set forth herein, You agree to abide by the following standards of conduct. You agree that You will not, and will not authorize or facilitate any attempt by another person to use our Website, Services or any related communication methods to:

  • Transmit unsolicited commercial e-mail (aka “spam”) or unsolicited mass distributions of messages or files;
  • Offer or sell securities;
  • Fail to comply with any restrictions on the use of such communication methods as set forth on our Website from time to time;
  • Transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by HelloOtter in its sole discretion;
  • Use a name or language that HelloOtter, in its sole discretion, deems offensive;
  • Transmit defamatory statements;
  • Transmit hateful or racially or ethnically objectionable content;
  • Transmit content which infringes another’s copyright, trademark, trade secret, privacy rights, publicity rights or other proprietary rights;
  • Transmit unsolicited advertising or unlawfully promote products or services;
  • Harass, threaten or intentionally embarrass or cause distress to another person or entity;
  • Impersonate another person or entity;
  • Promote, solicit, or participate in any multi-level marketing or pyramid schemes;
  • Exploit children under 18 years of age;
  • Engage in disruptive activity such as sending multiple messages in an effort to monopolize a forum;
  • Introduce viruses, worms, Trojan horses and/or harmful code to the Website;
  • Obtain unauthorized access to any computer system through the Website;
  • Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);
  • Solicit personal information from children under 13 years of age;
  • Violate any federal, state, local, or international law or regulation; or
  • Encourage conduct that would constitute a criminal or civil offense.
  • Engage in conduct that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).

HelloOtter reserves the right (but shall have no obligation) to review Your Content for the purpose of enforcing these terms. HelloOtter may in its sole discretion block, prevent delivery of or otherwise remove Your Content as part of its effort to protect the Services or other users of the Services, or otherwise enforce these terms. Further, HelloOtter may in its sole discretion remove Your Content and/or terminate this Agreement and your registration to access and use the Services if Your Content is in breach of these terms.

Recordings. You are responsible for compliance with all recording laws. The Services may provide functionality to enable hosts of videoconferences to record such videoconferences from time to time. By using the Services, you are giving HelloOtter consent to store recordings for any or all videoconferences that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the videoconference when You receive such notice.

FEES AND PAYMENT.

Subscription Fees. Some of our Services are provided free of charge while other Services are subject to a fee (“Subscription Fee”) which varies based on the nature and extent of such Services. Any applicable Subscription Fees will be identified in the course of Your purchase. For any Services subject to a Subscription Fee, You will be billed in advance on a monthly basis for the applicable Subscription Fees for such Services. Except as otherwise specified on the Website at the time of Your purchase, subscriptions and Subscription Fees are non-cancellable during the Subscription Term. HelloOtter may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Your then-current Subscription Term will not change until the expiration of such then-current Subscription Term. Further, HelloOtter may limit the availability or duration of any free Services at any time in HelloOtter’s discretion.

Purchase Prices. Some of our Products are provided free of charge while other Products are available for purchase through the Services and are subject to a fee (“Purchase Price”) which varies based on the nature of such Products. Any applicable Purchase Prices will be identified in the course of Your purchase. All payments are non-refundable. HelloOtter may change the Purchase Prices in its sole discretion at any time.

Payment Terms. Except as otherwise expressly set forth on the Website or in the applicable App, You shall pay HelloOtter on a monthly basis for Services and upon Your purchase of Products. If You agree to a purchase of Services on a recurring basis, You agree that we may automatically charge the payment method You have provided at the agreed intervals, unless and until You cancel Your Subscription Term by selecting the cancellation option on Your account page on the Website or Apps. You represent that You have the legal right to use any payment method that You submit to us. You shall pay HelloOtter the amount due under any invoice within thirty (30) days of the date of invoice by such payment methods as are supported by HelloOtter at the time of payment. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. All amounts paid to HelloOtter are non-refundable except as expressly set forth herein. Your payment and related payment information is managed through a third party payment processor, and HelloOtter is not responsible for such third party processor’s use of Your payment information.

Taxes. You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on HelloOtter’s net income) with respect to the Services and Products.

REPRESENTATIONS AND WARRANTIES.

Mutual Warranties. You and HelloOtter each represents, warrants and covenants that: (a) such party has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) such party’s agreement to and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.

No Website or Services Warranty. The Website, HelloOtter Platform, Apps and Services are provided “AS IS” without any warranties, express or implied. YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR OWN RISK. HELLOOTTER DOES NOT MAKE, AND TO THE FULLEST EXTENT PROVIDED BY LAW, HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HELLOOTTER DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA OR CONTENT ENTERED INTO OR SAVED IN THE HELLOOTTER PLATFORM OR APPS. HELLOOTTER FURTHER DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, HELLOOTTER PLATFORM, APPS OR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES HELLOOTTER WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICES.

INDEMNIFICATION.

You shall indemnify and hold harmless, and at HelloOtter’s request defend, HelloOtter and its affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) any third party claim or threat thereof that Your Registration Information or Your Content (and the exercise of the rights by HelloOtter granted herein with respect thereto) infringes, misappropriates or violates any third party’s intellectual property rights; (b) Your use or alleged use of the Services or Products (other than claims arising from HelloOtter’s breach of this Agreement); (c) any breach or alleged breach by You of any of Your covenants, representations or warranties set forth in this Agreement; or (d) your breach of any applicable law or regulation. HelloOtter will notify You promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve You of Your obligations hereunder except to the extent that You were actually and materially prejudiced by such failure. You shall not settle any claim for which indemnification is sought under this Section 5 without the prior written approval of HelloOtter, which approval shall not be unreasonably withheld or delayed.

PROPRIETARY RIGHTS.

Ownership. You acknowledge that the HelloOtter Platform, Apps and the Services, and all intellectual property rights therein, are the sole and exclusive property of HelloOtter and its licensors. Each party retains all other rights not expressly granted in this Agreement.

Limited Feedback License. You hereby grant to HelloOtter, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Your intellectual property rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Services that You may provide from time to time, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the HelloOtter Platform, the Apps, the Services or any other products or services. Feedback is provided “as is” without warranty of any kind.

Usage Data. Notwithstanding anything else in the Agreement or otherwise, HelloOtter may monitor Your use of the Services for HelloOtter’s internal purposes, including to create data or information therefrom in an aggregate or de-identified manner, such as compilation of statistical and performance information related to the provision and operation of the Services. You agree that HelloOtter may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify You. HelloOtter retains all intellectual property rights in such data and information.

Limitation of Liability.

No Consequential Damages. HELLOOTTER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HELLOOTTER OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE APPS, HELLOOTTER PLATFORM, SERVICES OR PRODUCTS OR RESULTS THEREOF. HELLOOTTER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. HELLOOTTER WILL NOT BE LIABLE FOR ANY CLAIM, DAMAGE OR LOSS (WHETHER DIRECT OR INDIRECT) ARISING FROM OR RELATING TO (A) YOUR INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, (B) YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES, (C) YOUR FAILURE TO PROVIDE ACCURATE PHYSICAL LOCATION INFORMATION TO AN EMERGENCY SERVICES OPERATIVE, OR (D) CONDUCT OF THIRD PARTY EMERGENCY SERVICES OPERATIVES OR CALLING CENTERS TO WHICH YOU MAY BE CONNECTED.

Limits on Liability. HELLOOTTER AND ITS LICENSORS SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PRODUCTS GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO HELLOOTTER UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY HELLOOTTER TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. YOU RELEASE HELLOOTTER AND ITS SERVICE PROVIDERS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE SERVICES, PRODUCTS AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 7.2.

Essential Purpose. You acknowledge that the terms in this Section 7 are an essential basis of the bargain described in this Agreement and that, were HelloOtter to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

TERM AND TERMINATION.

Term. The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Services, unless earlier terminated as provided in this Agreement.

Termination. HelloOtter reserves the right to terminate this Agreement for any or no reason in its sole discretion at any time; provided that, in the event of such termination of Services subject to Subscription Fees without cause, HelloOtter will provide a pro-rata refund to You of any pre-paid Subscription Fees for the then-current Subscription Term. Further, either party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.

Effects of Termination. Upon expiration or termination of this Agreement, (i) Your use of and access to the Services and virtual Products shall cease; and (ii) all fees and other amounts owed under this Agreement shall be immediately due and payable by You. HelloOtter shall have no obligation to maintain or provide any of Your Content or virtual Products may thereafter unless legally prohibited, delete all such content in its systems or otherwise in its possession or under its control.

Survival. This Section 8.4 and Sections 2 (Your Responsibilities, Grant and Interactions), 3 (Fees and Payment), 4 (Representations and Warranties), 5 (Indemnification), 6 (Proprietary Rights), 7 (Limitation of Liability), 8.3 (Effects of Termination), 9 (Agreement to Arbitrate) and 10 (Miscellaneous) shall survive any termination or expiration of this Agreement.

AGREEMENT TO ARBITRATE.

Arbitration. If You are in the United States or Canada, You agree that all disputes between You and HelloOtter (whether or not such dispute involves a third party) arising out of or relating to this Agreement, the Website, HelloOtter Platform, Apps, the Services, the Products and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in Boston Massachusetts, U.S.A., in each case under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and HelloOtter hereby expressly waive trial by jury. You and HelloOtter shall appoint as sole arbitrator a person mutually agreed by You and HelloOtter or, if You and HelloOtter cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. Each party shall equally bear the costs of the arbitration, and each party will bear the cost of their own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or HelloOtter shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Agreement (including without limitation Section 7) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

Waiver of Class Actions. Any claims brought by You or HelloOtter must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor HelloOtter will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You hereby waive any and all rights to bring any claims related to this Agreement and our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf. Opt Out. You may opt out of this agreement to arbitrate in this Section 9. If You do so, neither You nor we can require the other to participate in an arbitration proceeding. To opt out, You must notify us in writing within thirty (30) days of the date that You first became subject to this arbitration provision. The opt out notice must state that You do not agree to the agreement to arbitrate and must include Your name, address, phone number, Your Login Credentials to which the opt out applies and a clear statement that You want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way You can opt out of the agreement to arbitrate. You must use this address to opt out: HelloOtter LLC, ATTN: Arbitration Opt-out, 1273 East Putnam Ave, #1083, Riverside, CT 06878, USA.

Survival. This Section 9 will survive the termination of Your relationship with HelloOtter.
Miscellaneous.

Notices. You agree to the electronic delivery of notices.

Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by You. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of New York as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Subject in all respects to Section 9, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York.

Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; epidemic, pandemic, unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, act of terror, insurrection, riot, act of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused, and whether or not foreseeable as of the Effective Date.

Assignment. You may not assign Your rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without HelloOtter’s prior written consent. HelloOtter may assign its rights or obligations under this Agreement without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.

Relationship of the Parties. HelloOtter is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.

Construction of Agreement. Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.

Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

Version: January 12, 2021

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