Thank you for choosing Onder
Onder Terms of Service
Last Updated: March 9, 2023
Welcome, and thank you for your interest in Onder, Inc (“Onder,” “we,” or “us”) and our website at www.getonder.com, along with our
related websites, hosted applications, mobile or other downloadable applications, and other services
provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Onder regarding
your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,”
OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE
SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR
USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ONDER’S
PRIVACY POLICY (TOGETHER,
THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO
NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND
ONDER’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ONDER AND BY YOU TO BE BOUND BY
THESE TERMS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF ONDER AT THE PHONE
NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE ONDER REPRESENTATIVES COORDINATING HOME SERVICES,
DISCUSSING YOUR HOME MANAGEMENT PLAN AND OFFERS FOR SERVICES RELATED TO YOUR HOME ACCOUNT. YOU UNDERSTAND
AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT
USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A
CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising
under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND
ONDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE
PROCEEDING.
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Onder Service Overview. Onder offers home
management membership services for homeowners. Subscribers to Onder’s Services
(“Members”) can use Onder’s
platform to manage home repair and maintenance services with approved vendors.
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Onder Membership Terms.
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Onboarding. As part of the onboarding process,
Onder will dispatch an Onder technician (“Onder Field
Technician”) to visit the Member’s home (a “Home Visit”). During the Home Visit, the Onder Field Technician
will photograph the home, take measurements, and collect relevant information about the home. Onder
will also assign a virtual agent that will perform administrative support for Members. Onder may use
the information gathered during the Home Visit to: (a) identify any potential areas of the home that
may need maintenance or repair services; (b) provide repair, support, and maintenance services to
the Member; (c) connect you with an independent service provider that has a relationship with Onder
to provide the requested services (a “Vetted Service
Vendor”); and (d) as otherwise described in our Privacy Policy.
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Service Requests. Members may use the Services
to manage requests for home maintenance and repair services. If you submit a request for specific
services using the Services, Onder will make commercially reasonable efforts to connect you with a
Vetter Service Vendor, facilitate scheduling an appointment with the Vetted Service Vendor to
provide the requested services, and process payments for the services provided by the Vetted Service
Vendor. Some of the information you provide may be shared with Vetted Service Vendors so that Onder
can fulfil your request. By providing this information to us, or by
submitting a service request, you are expressly consenting to being contacted by either us or any
Vetted Service Vendor via phone, email, mail, text (SMS) messaging, or other reasonable means, at
any of your contact number or addresses, even if you are listed on any federal, state, local or
other applicable “Do Not Call” list. We may also contact you to solicit feedback on
Vetted Service Vendors. Standard text message rates may apply to any text messages we or any Vetted
Service Vendor sends you. You agree not to solicit, hire, or engage any Vetted Service Vendors to
provide any services, including repeat or future services, outside of or separate from the Onder
Services.
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Vetted Service Vendors. You agree
that even if we connect you with a Vetted Service Vendor through the Service, it is your sole
responsibility to decide whether to choose to receive services from any Vetted Service Vendor. You
should always exercise due care and diligence when hiring any Vetted Service Vendors. It is entirely
up to you to evaluate Vetted Service Vendors and their products and qualifications. You assume all
risks when using the Service, including but not limited to all of the risks associated with any
online or offline interactions Vetted Service Vendors listed on or connected with you through the
Service. Onder disclaims any and all representations or warranties with
regard to any Vetted Service Vendor’s performance on the job or the outcome or quality of the
services performed.
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Disputes; Release from Damages and Claims. All disputes between users and Vetted Service Vendors, are solely between and must be
addressed between those parties. Should you have a dispute with respect to any service provided by
any Vetted Service Vendors, you must address the dispute directly with that Vetted Service Vendors.
YOU HEREBY RELEASE ONDER (AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENT,
SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS, ASSIGNEES, AGENTS, REPRESENTATIVES, ADVERTISERS,
MARKETING PARTNERS, LICENSORS, INDEPENDENT CONTRACTORS, RECRUITERS, OR CORPORATE PARTNERS,
HEREINAFTER “ONDER ENTITIES”) FROM
ANY AND ALL DISPUTES ARISING OUT OF ANY PRODUCT CONTRACTS OR IN ANY WAY CONNECTED WITH INTERACTIONS
BETWEEN USERS INCLUDING INDEPENDENT SERVICE PROVIDERS. ONDER IS NOT
RESPONSIBLE FOR ANY DAMAGE OR HARM RESULTING FROM YOUR INTERACTIONS WITH ANY VETTED SERVICE VENDOR,
INCLUDING PERSONAL INJURY OR PROPERY DAMAGE.
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Eligibility. You must be at least 18
years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a)
you are at least 18 years old; (b) you have not previously been suspended or removed from the
Service; and (c) your registration and your use of the Service is in compliance with any and all
applicable laws and regulations. If you are an entity, organization, or company, the individual
accepting these Terms on your behalf represents and warrants that they have authority to bind you to
these Terms and you agree to be bound by these Terms.
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Accounts and Registration. To access
most features of the Service, you must register for an account. You may register using your Google
account or you may create a separate account for the Service. When you register for an account, you
may be required to provide us with some information about yourself, such as your name, email
address, home address, phone number, or other contact information. You agree that the information
you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and
up to date at all times. When you register, you will be asked to create a password. You are solely
responsible for maintaining the confidentiality of your account and password, and you accept
responsibility for all activities that occur under your account. If you believe that your account is
no longer secure, then you should immediately notify us at support@getonder.com.
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General Payment Terms. Certain features of the
Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review
and accept the fees that you will be charged. Unless otherwise specifically provided for in these
Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law. In order to process your payment, we use Stripe, a third-party payment processor.
Stripe accepts all major debit and credit cards. Your payment will be processed by Stripe
(https://stripe.com/), who will collect, use, and process your information, including payment information, in
accordance with their privacy policy. You can access their privacy policy via the following link:
(https://stripe.com/gb/privacy).
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Price. Onder reserves the
right to determine pricing for the Service. Onder will make reasonable efforts to keep pricing
information published on the Service up to date. We encourage you to check our pricing page
periodically for current pricing information. Onder may change the fees for any feature of the
Service, including additional fees or charges, if Onder gives you advance notice of changes before
they apply. Onder, at its sole discretion, may make promotional offers with different features and
different pricing to any of Onder’s customers. These promotional offers, unless made to you,
will not apply to your offer or these Terms.
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Authorization. You authorize Onder
(and our third-party payment processor, Stripe) to charge all sums for the orders that you make and
any level of Service you select as described in these Terms or published by Onder, including all
applicable taxes, to the payment method specified in your account. If you pay any fees with a credit
card, then Onder may seek pre-authorization of your credit card account prior to your purchase to
verify that the credit card is valid and has the necessary funds or credit available to cover your
purchase. Additionally, payment processing will be subject to all applicable
terms and conditions and the privacy policy of Stripe (available at https://stripe.com/).
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Subscription Service. The Service may include certain subscription-based plans
with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your
first subscription to the Service. The Subscription Service will begin on the Subscription Billing
Date and continue for the subscription period that you select on your account (such period, the
“Initial Subscription Period”), and will
automatically renew for successive periods of the same duration as the Initial Subscription Period
(the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service
or we terminate it. If you activate a Subscription Service, then you authorize Onder or its
third-party payment processors to periodically charge, on a going-forward basis and until
cancellation of the Subscription Service, all accrued sums on or before the payment due date. For
information on the “Subscription Fee”, please
see our home page https://getonder.com. Your account will be charged automatically on the
Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all
applicable fees and taxes for the next Subscription Period. You must cancel your Subscription
Service before it renews in order to avoid billing of the next periodic Subscription Fee to your
account. Onder or its third-party payment processor will bill the periodic Subscription Fee to the
payment method associated with your account or that you otherwise provide to us. You may cancel the
Subscription Service by contacting us
at support@getonder.com. YOUR CANCELLATION MUST BE
RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
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Delinquent Accounts. Onder may suspend
or terminate access to the Service, including fee-based portions of the Service, for any account for
which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent
account will be charged with fees or charges that are incidental to any chargeback or collection of
any the unpaid amount, including collection fees. If your payment method is no longer valid at the
time a renewal Subscription Fee is due, then Onder reserves the right to delete your account and any
information or user content associated with your account without any liability to you.
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Limited License. Subject
to your complete and ongoing compliance with these Terms, Onder grants you, solely for your
personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable,
revocable license to: (a) install and use one object code copy of any mobile or other downloadable
application associated with the Service (whether installed by you or pre-installed on your mobile
device by the device manufacturer or a wireless telephone provider) on a mobile device that you own
or control; and (b) access and use the Service.
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License Restrictions. Except and solely to the
extent such a restriction is impermissible under applicable law, you may not: (a) reproduce,
distribute, publicly display, publicly perform, or
create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with
or circumvent any feature of the Service, including any security or access control mechanism. If you
are prohibited under applicable law from using the Service, then you may not use it.
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Feedback. We respect and appreciate
the thoughts and comments from our users. If you choose to provide input and suggestions regarding
existing functionalities, problems with or proposed modifications or improvements to the Service
(“Feedback”), then you hereby grant Onder an
unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to
exploit the Feedback in any manner and for any purpose, including to improve the Service and create
other products and services. We will have no obligation to provide you with attribution for any
Feedback you provide to us.
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Ownership; Proprietary Rights. The
Service is owned and operated by Onder. The visual interfaces, graphics, design, compilation,
information, data, computer code (including source code or object code), products, software,
services, and all other elements of the Service provided by Onder (“Materials”) are protected by intellectual property and
other laws. All Materials included in the Service are the property of Onder or its third-party
licensors. Except as expressly authorized by Onder, you may not make use of the Materials. There are
no implied licenses in these Terms and Onder reserves all rights to the Materials not granted
expressly in these Terms.
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Third-Party Terms
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Third-Party Services and Linked Websites. Onder may
provide tools through the Service that enable you to export information, including user content, to
third-party services, including through features that allow you to link your account on the Service
with an account on the third-party service, such as Twitter or Facebook, or through our
implementation of third-party buttons (such as “like” or “share” buttons).
By using one of these tools, you hereby authorize that Onder to transfer that information to the
applicable third-party service. Third-party services are not under Onder’s control, and, to
the fullest extent permitted by law, Onder is not responsible for any third-party service’s
use of your exported information. The Service may also contain links to third-party websites. Linked
websites are not under Onder’s control, and Onder is not responsible for their content. Please
be sure to review the terms of use and privacy policy of any third-party services before you share
any user content or information with such third-party services. Once sharing occurs, Onder will have
no control over the information that has been shared.
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Third-Party Software. The Service may include or
incorporate third-party software components that are generally available free of charge under
licenses granting recipients broad rights to copy, modify, and distribute those components
(“Third-Party Components”). Although
the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts,
or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable
third-party licenses or to limit your use of Third-Party Components under those third-party
licenses.
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Communications
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Text Messaging & Phone Calls. You agree that
Onder and those acting on our behalf may call and send you text (SMS) messages at the phone number
you provide us. These calls and messages may include operational calls or messages about your use of
the Service, as well as marketing calls or messages. Calls and text messages may be made or sent
using an automatic telephone dialing system. Standard data and message rates may apply whenever you
send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF
MARKETING CALLS AND TEXT MESSAGES FROM Onder, YOU CAN EMAIL SUPPORT@GETONDER.COM OR
TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU
WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM Onder, YOU CAN EMAIL
SUPPORT@GETONDER.COM OR TEXT THE WORD
“STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU
ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may
continue to receive calls and text messages for a short period while we process your request,
including a message confirming the receipt of your opt-out request. Your agreement to receive
marketing texts is not a condition of any purchase on or use of the Service.
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Email. We may send you emails concerning
our products and services, as well as those of third parties. You may opt out of promotional emails
by following the unsubscribe instructions in the promotional email itself.
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Prohibited Conduct. BY
USING THE SERVICE, YOU AGREE NOT TO:
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use the Service for any illegal purpose or in violation of any
local, state, national, or international law;
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encourage, solicit, hire, or engage any Vetted Service Vendor to
provide services to you outside of or separate from the Onder Services;
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violate, encourage others to violate, or provide
instructions on how to violate, any right of a third party, including by infringing or
misappropriating any third-party intellectual property right;
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access, search, or otherwise use any portion of the Service
through the use of any engine, software, tool, agent, device, or mechanism (including spiders,
robots, crawlers, and data mining tools) other than the software or search agents provided by
Onder;
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interfere with security-related features of the Service,
including by: (i) disabling or circumventing features that prevent or limit use, printing or copying
of any content; or (ii) reverse engineering or otherwise attempting to discover the source code
of any portion of the Service except to the extent that the activity is expressly permitted by
applicable law;
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interfere with the operation of the Service or any user’s
enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus,
adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or
advertisement to another user of the Service; (iii) collecting personal information about
another user or third party without consent; or (iv) interfering with or disrupting any
network, equipment, or server connected to or used to provide the Service;
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perform any fraudulent activity including impersonating any
person or entity, claiming a false affiliation or identity, accessing any other Service account
without permission;
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sell or otherwise transfer the access granted under these Terms or any
Materials (as defined in Section 6 (Ownership; Proprietary
Rights)) or any right or ability to view, access, or use any Materials;
or
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attempt to do any of the acts described in this Section 9
(Prohibited Conduct) or assist or permit any person in engaging
in any of the acts described in this Section 9 (Prohibited
Conduct).
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Modification of Terms. We may, from
time to time, change these Terms. Please check these Terms periodically for changes. Revisions will
be effective immediately except that, for existing users, material revisions will be effective 30
days after posting or notice to you of the revisions unless otherwise stated. We may require that
you accept modified Terms in order to continue to use the Service. If you do not agree to the
modified Terms, then you should discontinue your use of the Service. Except as expressly permitted
in this Section 10 (Modification of Terms), these Terms may be amended only by a
written agreement signed by authorized representatives of the parties to these Terms.
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Term, Termination, and Modification of the Service
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Term. These Terms are effective beginning when you
accept the Terms or first download, install, access, or use the Service, and ending when terminated
as described in Section 11.2 (Termination).
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Termination. If you
violate any provision of these Terms, then your authorization to access the Service and these Terms
automatically terminate. In addition, Onder may, at its sole discretion, terminate these Terms or
your account on the Service, or suspend or terminate your access to the Service, at any time for any
reason or no reason, with or without notice, and without any liability to you arising from such
termination. You may terminate your account and these Terms at any time by contacting customer
service at support@getonder.com.
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Effect of Termination. Upon
termination of these Terms: (a) your license rights will terminate and you must immediately cease
all use of the Service; (b) you will no longer be authorized to access your account or the Service;
(c) you must pay Onder any unpaid amount that was due prior to termination; and (d) all payment
obligations accrued prior to termination and Sections 5.7 (Feedback), 6 (Ownership;
Proprietary Rights), 11.3 (Effect of
Termination), 12 (Indemnity), 13 (Disclaimers; No Warranties by Onder), 14 (Limitation of Liability), 15
(Dispute Resolution and Arbitration), and 16
(Miscellaneous) will survive. You
are solely responsible for retaining copies of any user content you post to the Service since upon
termination of your account, you may lose access rights to any user content you posted to the
Service. If your account has been terminated for a breach of these Terms, then you are prohibited
from creating a new account on the Service using a different name, email address or other forms of
account verification.
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Modification of the Service. Onder reserves the right to modify or discontinue all or any
portion of the Service at any time (including by limiting or discontinuing certain features of the
Service), temporarily or permanently, without notice to you. Onder will have no liability for any
change to the Service, including any paid-for functionalities of the Service, or any suspension or
termination of your access to or use of the Service. You should retain copies of any user content
you post to the Service so that you have permanent copies in the event the Service is modified in
such a way that you lose access to user content you posted to the Service.
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Indemnity. To the fullest extent permitted by law, you are responsible for your
use of the Service, and you will defend and indemnify Onder, its affiliates and their respective
shareholders, directors, managers, members, officers, employees, consultants, and agents (together,
the “Onder Entities”) from and against
every claim brought by a third party, and any related liability, damage, loss, and expense,
including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized
use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any
representation, warranty, or agreement referenced in these Terms, or any applicable law or
regulation; (3) your violation of any third-party right, including any intellectual property right
or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between
you and any third party. We reserve the right, at our own expense, to assume the exclusive defense
and control of any matter otherwise subject to indemnification by you (without limiting your
indemnification obligations with respect to that matter), and in that case, you agree to cooperate
with our defense of those claims.
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Disclaimers; No Warranties by Onder
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THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE
PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ONDER DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND
CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY
ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ONDER DOES NOT WARRANT THAT THE SERVICE OR ANY
PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE
UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ONDER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
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NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE
SERVICE OR ONDER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY
WARRANTY REGARDING ANY OF THE ONDER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE
TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH
ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN
DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR
COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING
USER CONTENT.
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THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 13
(DISCLAIMERS; NO WARRANTIES BY ONDER) APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW. Onder does not disclaim any warranty or other right that Onder is prohibited from
disclaiming under applicable law.
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Limitation of Liability
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TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE
ONDER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT
OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY
MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING
NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ONDER ENTITY HAS BEEN
INFORMED OF THE POSSIBILITY OF DAMAGE.
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EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING
ARBITRATION) AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ONDER
ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY
PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS
LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO ONDER FOR ACCESS TO AND USE OF THE
SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND
(b) US$100.
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EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION
OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE
RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF
THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER
PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.
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Dispute Resolution and Arbitration
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Generally. Except as described in
Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Onder agree that every dispute arising in
connection with these Terms, the Service, or communications from us will be resolved through binding
arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a
court proceeding, may allow for more limited discovery than in court, and is subject to very limited
review by courts. This agreement to arbitrate disputes includes all claims whether based in
contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of
whether a claim arises during or after the termination of these Terms. Any dispute relating to the
interpretation, applicability, or enforceability of this binding arbitration agreement will be
resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Onder ARE EACH
WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
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Exceptions. Although we
are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive,
preclude, or otherwise limit the right of either party to: (a) bring an individual action in small
claims court; (b) pursue an enforcement action through the applicable federal, state, or local
agency if that action is available; (c) seek injunctive relief in a court of law in aid of
arbitration; or (d) to file suit in a court of law to address an intellectual property infringement
claim.
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Opt-Out. If you do not wish to
resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15
(Dispute Resolution and Arbitration) within 30 days after the
date that you agree to these Terms by sending a letter to Onder, Inc., Attention: Legal Department
– Arbitration Opt-Out, 1448 NW Market St, STE 500, Seattle, WA 98107 that specifies: your full
legal name, the email address associated with your account on the Service, and a statement that you
wish to opt out of arbitration (“Opt-Out
Notice”). Once Onder receives your Opt-Out Notice, this Section 15
(Dispute Resolution and Arbitration) will be void and any
action arising out of these Terms will be resolved as set forth in Section 16.2 (Governing Law). The remaining provisions of these Terms will not
be affected by your Opt-Out Notice.
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Arbitrator. This arbitration agreement, and any
arbitration between us, is subject the Federal Arbitration Act and will be administered by the
American Arbitration Association (“AAA”) under
its Consumer Arbitration Rules (collectively, “AAA
Rules”) as modified by these Terms. The AAA Rules and filing forms are
available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Onder.
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Commencing Arbitration. Before
initiating arbitration, a party must first send a written notice of the dispute to the other party
by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has
not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Onder’s address for Notice is:
Onder, Inc., 1448 NW Market St, STE 500, Seattle WA, 98107. The Notice of Arbitration must:
(a) identify the name or account number of the party making the claim; (b) describe the nature
and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to
resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days
after the Notice of Arbitration is received, you or Onder may commence an arbitration proceeding. If
you commence arbitration in accordance with these Terms, Onder will reimburse you for your payment
of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or
more similar demands for arbitration, in which case the payment of any fees will be decided by the
AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in
the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth
in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA
Rules and the other party may seek reimbursement for any fees paid to AAA.
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Arbitration Proceedings. Any
arbitration hearing will take place in the county and state of your [residence/billing address]
unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive
relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of
documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an
in-person hearing as established by the AAA Rules in the county (or parish) of your
[residence/billing address]. During the arbitration, the amount of any settlement offer made by you
or Onder must not be disclosed to the arbitrator until after the arbitrator makes a final decision
and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator
must issue a reasoned written decision sufficient to explain the essential findings and conclusions
on which the decision and award, if any, are based.
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Arbitration Relief. Except as
provided in Section 15.8 (No Class Actions), the arbitrator can
award any relief that would be available if the claims had been brought in a court of competent
jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount
offered by Onder before an arbitrator was selected, Onder will pay to you the higher of: (a) the
amount awarded by the arbitrator and (b) [US$10,000]. The arbitrator’s award shall
be final and binding on all parties, except (1) for judicial review expressly permitted by law or
(2) if the arbitrator’s award includes an award of injunctive relief against a party, in which
case that party shall have the right to seek judicial review of the injunctive relief in a court of
competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions
of law. Judgment on the award may be entered in any court having jurisdiction.
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No Class Actions. YOU AND
ONDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further,
unless both you and Onder agree otherwise, the arbitrator may not consolidate more than one
person’s claims, and may not otherwise preside over any form of a representative or class
proceeding.
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Modifications to this Arbitration Provision. If Onder makes any substantive change to this arbitration provision, you may reject the
change by sending us written notice within 30 days of the change to Onder’s address for
Notice of Arbitration, in which case your account with Onder will be immediately terminated and this
arbitration provision, as in effect immediately prior to the changes you rejected will
survive.
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Enforceability. If Section 15.8
(No Class Actions) or the entirety of this Section 15
(Dispute Resolution and Arbitration) is found to be
unenforceable, or if Onder receives an Opt-Out Notice from you, then the entirety of this
Section 15 (Dispute Resolution and Arbitration) will be
null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2
(Governing Law) will govern any action arising out of or
related to these Terms.
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Miscellaneous
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General Terms.
These Terms, including the Privacy Policy and any other agreements expressly
incorporated by reference into these Terms, are the entire and exclusive understanding and agreement
between you and Onder regarding your use of the Service. You may not assign or transfer these Terms
or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our
prior written consent. We may assign these Terms and all rights granted under these Terms, including
with respect to your user content, at any time without notice or consent. The failure to require
performance of any provision will not affect our right to require performance at any other time
after that, nor will a waiver by us of any breach or default of these Terms, or any provision of
these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself.
Use of Section headers in these Terms is for convenience only and will not have any impact on
the interpretation of any provision. Throughout these Terms the use of the word
“including” means “including but not limited to.” If any part of these Terms
is held to be invalid or unenforceable, then the unenforceable part will be given effect to the
greatest extent possible, and the remaining parts will remain in full force and effect.
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Governing Law. These
Terms are governed by the laws of the State of Washington without regard to conflict of law
principles. You and Onder submit to the personal and exclusive jurisdiction of the state courts and
federal courts located within King County, Washington for resolution of any lawsuit or court
proceeding permitted under these Terms. We operate the Service from our offices in Washington, and
we make no representation that Materials included in the Service are appropriate or available for
use in other locations.
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Privacy Policy. Please read the Onder Privacy Policy
(the “Privacy
Policy”)
carefully for information relating to our collection, use, storage, and disclosure of your personal
information. The Onder Privacy Policy is
incorporated by this reference into, and made a part of, these Terms.
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Additional Terms. Your use of the
Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service
or certain features of the Service that we may post on or link to from the Service (the
“Additional Terms”). All Additional
Terms are incorporated by this reference into, and made a part of, these Terms.
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Consent to Electronic
Communications. By using the Service, you consent to receiving certain electronic
communications from us as further described in our Privacy Policy. Please read our Privacy Policy to
learn more about our electronic communications practices. You agree that any notices, agreements,
disclosures, or other communications that we send to you electronically will satisfy any legal
communication requirements, including that those communications be in writing.
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Contact Information.
The Service is offered by Onder, Inc., located at 1448 NW Market St, STE 500,
Seattle, WA 98107. You may contact us by sending correspondence to that address or by emailing us at
support@getonder.com.
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Notice to California Residents. If you
are a California resident, then under California Civil Code Section 1789.3, you may contact the
Complaint Assistance Unit of the Division of Consumer Services of the California Department of
Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or
by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive
further information regarding use of the Service.
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No Support. We are under no obligation
to provide support for the Service. In instances where we may offer support, the support will be
subject to published policies.
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International Use. The Service is
intended for visitors located within the United States. We make no representation that the Service
is appropriate or available for use outside of the United States. Access to the Service from
countries or territories or by individuals where such access is illegal is prohibited.