Terms of Use
Last updated: December 17, 2024Welcome to Offcall. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: contact@offcall.com
Phone: +1 510-764-8903
Address: 540 Belvedere Street, San Francisco, California 94117
These Terms of Use (the “Terms”) are a binding contract between you and OFFCALL, INC. (“Offcall,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy, and Copyright Dispute Policy in the “What if I see something on the Services that infringes my copyright?” section of these Terms. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://www.offcall.com/, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Offcall takes the privacy of its users very seriously. For the current Offcall Privacy Policy, please click here. The term “Personal Data” as used in these Terms shall have the definition set forth in the Privacy Policy.
Children's Online Privacy Protection Act?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect Personal Data online from children who are under 13 years of age. We do not knowingly collect or solicit Personal Data from children under 18; if you are a child under 18 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 18 years of age, we will delete that information as quickly as possible. If you believe that a child under 18 years of age may have provided us personal information, please contact us at contact@offcall.com.
You may be required to sign up for an account, select a password and user name (“Offcall User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Offcall User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Offcall User ID, account or password with anyone, and you must protect the security of your Offcall User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Offcall User ID and account.
No Medical Advice; Not for Emergencies?
Offcall does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and are offered for informational and communicative purposes only. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare advice by Offcall.
The Services are not meant to diagnose or treat any conditions – only your medical professional can determine the right course of treatment for you and determine what is safe, appropriate and effective based on your needs. Reliance on any information provided by Offcall or in connection with the Services is solely at your own risk. You are solely responsible for any decisions or actions you take based on the information and materials available through the Services.
You acknowledge that although some Content (defined below) may be provided by individuals in the medical profession, the provision of such Content does not create a medical professional/patient relationship between you and Offcall or between you and any other individual or entity, and does not constitute an opinion, medical advice, or diagnosis or treatment. Healthcare providers and patients should always obtain applicable diagnostic information from appropriate trusted sources. Healthcare providers should never withhold professional medical advice or delay in providing it because of something they have read in connection with our Services.
THE SERVICES SHOULD NEVER BE USED AS A SUBSTITUTE FOR EMERGENCY CARE. IF YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE THINKING ABOUT SUICIDE OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911.
NO PART OF THE SERVICES SHOULD BE CONSTRUED AS INDIVIDUALIZED PROFESSIONAL ADVICE OF ANY KIND (INCLUDING FINANCIAL PLANNING, BUSINESS, EMPLOYMENT, INVESTMENT, ACCOUNTING, TAX, AND/OR LEGAL ADVICE). THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR THE PROFESSIONAL ADVICE OF AN FINANCIAL PLANNER OR ANY OTHER SIMILAR PROFESSIONAL
As part of the Services, you may receive communications through the Services, including messages that Offcall sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Offcall to send you information regarding your account or transactions with us, which may include Offcall using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Offcall, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Offcall. You agree to indemnify and hold Offcall harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Offcall's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Offcall owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
User Submissions
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
Licenses
In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your Personal Data.
For all User Submissions, you hereby grant Offcall a license to use, display, translate, modify (for technical purposes, for example, making sure your content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate and improve the Services or in connection with Offcall’s business purposes, as described in more detail below. This is a license only – your ownership in User Submissions is not affected. Additionally, you hereby grant Offcall a license to generate Aggregated De-identified Data (as defined below), which Offcall may freely use, retain, and make available for Offcall’s business purposes, including after you terminate after your account. “Aggregated De-identified Data” means data submitted to, collected by, or generated by Offcall in connection with your use of the Services, but only in aggregate or de-identified form which can in no way be linked specifically to you. For the avoidance of doubt, Aggregated De-identified Data shall not be deemed a User Submission. As between the parties, you acknowledge and agree that Offcall owns all right, title, and interest to Aggregated De-identified Data.
If you store a User Submission in your own personal Offcall account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Offcall the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Submission”), then you grant Offcall the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Offcall the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Offcall users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Offcall's business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Offcall account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Offcall's records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Offcall to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
Finally, you understand and agree that Offcall, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Offcall's Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
Please contact Offcall's Designated Agent at the following address:
Offcall, Inc.
Attn: DMCA Designated Agent
540 Belvedere Street
San Francisco, CA 94117
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Offcall. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Offcall is not responsible for such risks.
Offcall has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Offcall will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Offcall shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Offcall is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Offcall, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that 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.”
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
You’re free to do that at any time by contacting us at contact@offcall.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Offcall is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Offcall has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at contact@offcall.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
From time to time Offcall may offer rewards or incentives for referring others to the Services. For details of any current referral offers, please see our referral page [https://www.offcall.com/dashboard/profile/]. The referring user (“Referrer”) may refer individuals or entities who are neither current customers of Offcall nor registered users of the Services (“Referee”). A registered user is a person or entity that already has an existing account with Offcall. There is no limit to the number of referrals that Referrer can make, nor the cumulative rewards or incentives that the Referrer may receive through such special offer, unless otherwise indicated. Referrer will receive the stated reward or incentive for each Referee sent by the Referrer that completes the required action described in that specific offer (such as signing up for an account or making a purchase). All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. Offcall reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at Offcall's discretion for any reason or for no reason whatsoever. If Offcall determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, Offcall reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by Offcall to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
Warranty Disclaimer. Offcall and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Offcall and all such parties together, the “Offcall Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Offcall Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Offcall Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY OFFCALL (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE OFFCALL PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO OFFCALL IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Offcall Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Offcall's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires users of Paid Services to arbitrate certain disputes and claims (“Disputes”) with Offcall and limits the manner in which users of Paid Services can seek relief from Offcall. Both you and Offcall acknowledge and agree that for the purposes of any Dispute arising out of or relating to the subject matter of these Terms, Offcall's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any Dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the Dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract Disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Small Claims Court; Infringement. Either you or Offcall may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate Disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(c) Waiver of Jury Trial. YOU AND OFFCALL WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Offcall are instead choosing to have claims and Disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Offcall over whether to vacate or enforce an arbitration award, YOU AND OFFCALL WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the Dispute be resolved by a judge.
(d) 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Offcall is entitled to arbitration; instead all claims and Disputes will be resolved in a court as set forth in (g) below.
(e) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: [STREET ADDRESS], [CITY], California [ZIP CODE] postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(f) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Offcall to litigate any Dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Offcall agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls.
(g) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Offcall.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Offcall may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Offcall agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Offcall, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Offcall, and you do not have any authority of any kind to bind Offcall in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Offcall agree there are no third-party beneficiaries intended under these Terms.