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These Terms of Service are applicable to all persons or companies who use our Ontop Match Services (the “Services” or “Ontop Match Services”) provided by Ontop Holdings Inc., a US corporation organized under the laws of the State of Delaware (“Ontop”, “us”, and “we”). Please read these Terms of Service (these “Terms”) carefully before using the Ontop Match Services, since these Terms are non-negotiable. By using Ontop Match Services, you agree to comply with and be legally bound by these Terms. Certain features of the Ontop Match Services may be subject to additional guidelines, terms, or rules, which will be posted on the Website in connection with such features. All such additional terms, guidelines, and/or rules are incorporated by reference into these Terms.
You will be informed if these Terms are updated pursuant to Section 12.1 - Changes.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 12.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Ontop Match Overview
Ontop offers Ontop Match Services to help its Clients find the best professionals for their business. Once our Clients have matched with the perfect candidate, we will help you to onboard them through our Platform (as defined below). The Ontop Match Services are provided as a subscription service to our Clients for the purposes of later onboarding their Contractors through our Platform.
“Client(s)” are the persons or companies that engage Ontop in order to contract Ontop Match Services for the purposes of searching for and onboarding their Professionals through the Ontop Platform.
“Contractor(s)” are the individuals or legal entities that perform services to Clients and receive payments from Clients through the Platform.
“Ontop Platform” or the “Platform” means the software as a service (SaaS) platform available via login through the Ontop website located at www.getontop.com, as well as through mobile apps available on Apple iOS, Android, among others.
“Professional” means an individual that can provide professional services to Clients, whether they are hired (or considered to be hired) as employees, contracted as independent contractors, freelancers, or otherwise. Ontop Match provides remote-only professionals, anywhere in the world, subject to regional availability and desired profile, as per Section 3.5 - Client Responsibility for Selection Process below.
“Professional” means an individual that can provide professional services to Clients, whether they are hired (or considered to be hired) as employees, contracted as independent contractors, freelancers, or otherwise.
3. Hiring Ontop Match Services
3.1 Ontop Match Signup. The first step for a Client to sign up for Ontop Match Services is by visiting the signup form for the relevant Subscription Package (as defined in Section 4 below) and fill out all of the required information. The Client can choose the payment method that best suits their preferences as provided in the signup form.
3.2 For purposes of these Terms and the Services that Ontop provides, Clients need to name a representative that will discuss payment terms, professional profiles and any other information regarding the relationship between Client and Ontop.
4. Ontop Match Subscription Packages
Clients will be able to choose between Ontop Match packages offering different subscriptions to Ontop Match Services (“Subscription Package(s)”), whose features are detailed in the table below:
4.1 The subscription fee may be charged to the Client yearly (in advance) or on a monthly basis, whose price and payment terms will be detailed in the service proposal sent to the Client. The Client will also receive a monthly invoice of Ontop Match Services rendered via email. If the Client does not wish to continue to be charged on a monthly basis for Ontop Match Services, they should cancel their subscription. Cancellation of Ontop Match Services will take effect in the invoicing cycle following the request for cancellation. All prices are stated in United States Dollars.
4.2 Ontop Match Prime Plus. Subscription to Match Prime Plus Services will entitle the Client to to (i) Ontop Match consulting services, which will include initial screening, interviews and preliminary background checks for Professional candidates; (ii) advice on market compensation for independent contractors (which does not include employee salaries); and (iii) Match Care (as defined in Section 4.5 below) (“Match Prime Plus”).
4.3 Job Position Requests. The Client will pay a monthly subscription fee when requesting Ontop to search for Professionals for a specific position (“Job Position Request”). The Client can make any number of Job Position Requests, subject to payment of the Job Position Request fee for each one. Ontop will have an initial meeting with the Client in order to fully understand the Client’s needs for the specific position (“Kick-off Meeting”). Ontop will provide Professional candidates within a reasonable time period agreed upon between Ontop and the Client at the Kick-off Meeting, unless otherwise agreed upon between Ontop and Client. The Job Position Request fee will be charged on a monthly basis and the Client can use the job description to fill a single or multiple number of vacancies, as agreed upon between Ontop and Client in the service proposal. Once the Client has been able to fill the vacancy(ies) relating to the requested position, the Client must inform Ontop that the position is to be closed so that Ontop can stop invoicing the Job Position Request fee.
4.3.1 Depending on the profile of the Professional candidate in question and the prevalence of such individuals within the desired market, Ontop will find one or more Professional candidates after the Kick-off Meeting. Ontop has no obligation to provide a specific number of Professional candidates for any given position, but we will make all best efforts to find as many suitable matches as possible.
4.3.2 In order to qualify for additional services after making a Job Position Request, such as initial screening, interviews and preliminary background checks, among others, Clients will need to have a monthly Match Prime or Match Prime Plus subscription.
4.4 Hiring Professionals through the Ontop Platform. Clients acknowledge and agree that they must onboard the Professionals that they match with as Contractors through the Ontop Platform. Separate fees will be invoiced to Clients when they onboard their Contractors through the Platform, as detailed further in our Ontop Platform Terms of Service. By doing so, they will have access to additional screening and background checks for the independent contractors, as well as having their payroll handled by Ontop through the Platform as a payment agent, offering a number of different payment methods for both Clients and Contractors. The Contractors will also have access to the Ontop Wallet, Ontop Card and Ontop Perks & Benefits Marketplace through the Ontop Platform. Clients that are unable to onboard their Professionals as Contractors through our Platform must inform us of the reasons behind the impediment, which will be assessed by Ontop on a case-by-case basis, and both Ontop and Client agree to make their best efforts in finding a viable solution to enable onboarding the Professionals through the Ontop Platform. Clients that do not onboard their Professionals through our Platform without a justifiable reason (including, but not limited to hiring Professionals as full-time employees with Ontop in jurisdictions where Ontop offers such services) will be considered in breach of these Terms and subject to a penalty of cancellation of their Ontop Match Subscription Package and will need to make repayment of the yearly subscription fee in order to regain access to Ontop Match Services.
4.5 Client Responsibility for Selection Process. Clients may choose to contact, interview, hire, offer job positions, contract as independent contractors or any other actions as they deem appropriate. Clients are fully aware that Ontop does not provide talent acquisition services that include advanced selection processes (which may include specialized testing of language proficiency or logic, among others), salary calculations for employees and/or job offer drafting, among others. Ontop cannot search for Professional candidates in a specific city, country or region, nor can it respond to requests to search for native language speakers in a region that speaks a different language; the territory for seeking Professional candidates can be limited by geographical regions, and Ontop reserves the right to determine the extent of said regions according to its capabilities and will agree upon the regions with the Client. Similarly, Ontop does not perform requests to search for Professionals based on racial, ethic or religious profiles or perform any discriminatory practices in identifying Professional candidates; however, Ontop reserves the right to accept or decline such requests from Clients on a case-by-case basis, if they are deemed reasonable under the circumstances. It is the Client’s sole responsibility to ensure that the intended salary/compensation has a reasonable level of accuracy in relation to the job description, role/position and/or scope of services to be provided by the Professional(s).
4.6 Ontop Match Service Proposal. Unless stipulated otherwise in the service proposal provided by Ontop to the Client, the delivery of shortlists and candidates will be provided within a reasonable time period. The service proposal may define a specific number of Professional candidates, as per negotiations between Ontop and Client.
4.7 Match Care. Although Ontop does not make any general assurances or guarantees with respect to the successful contracting of the Professional candidates or their continued relationship with Clients, a Client may acquire a limited warranty under Ontop Match Services, which shall provide a substitute Professional candidate if the relationship between the Client and the Professional is terminated prematurely (“Match Care”), subject to acquisition of Match Care coverage under a subscription to the Match Prime Plus Subscription Package and the conditions of eligibility stated below. Match Care’s standard coverage shall remain valid for as long as the Client has an active Match Prime Plus monthly subscription (the “Coverage Period”). The warranty period for any given Professional shall begin from the effective date that the Client contracts the Professional through the Ontop Platform up until the final term of the contract between the Professional and the Client (“Warranty Period”). The Warranty Period cannot be greater than or equal to the term of the contract between the Professional and the Client.
4.7.1 Eligibility for Ontop Match Care Coverage. In addition to (i) having an active subscription to Match Prime Plus and (ii) onboarding the Professional through the Ontop Platform, Clients will be eligible for the Match Care coverage if one or more of the following conditions have been met:
(a) The Professional is not attending regular meetings, performing on deliverables or any other actions and/or tasks agreed upon with the Client, which may also include not answering calls or emails from the Client, general abandonment of the position and/or project, among others;
(b) The Professional was not forthcoming in the Client’s selection process as to their and professional capabilities, thus being unable to provide services to the Client; and
(c) Despite signing a contract with the Client, the Professional refuses to start working or to provide services to the Client.
4.7.2 Additional Conditions for Eligibility. Ontop reserves the right to provide Ontop Match Care coverage for conditions other than those mentioned in Subsection 4.7.1 above, at its sole discretion.
4.8 Refunds. Service proposals may offer a refund to Clients if they have declined all of the Professional candidates provided by Ontop during the course of a monthly subscription cycle since subscribing to Ontop Match Services. In such cases, refunds will be offered in the form of future credit for Ontop Match Services, given that the Client requests a refund within ten (10) business days following the end of the billing cycle of the Ontop Match Subscription Package. In the event that Ontop is unable to identify Professionals for a role due to the fact that the compensation level does not correspond to market prices, the Client will not be eligible for a refund. Ontop does not provide cash refunds, only credit for future Ontop Match Services. Ontop makes no guarantees or assurances with respect to refunds, and any requests for refunds from Clients will be assessed on a case-by-case basis.
5. Other Terms Applicable to Ontop Marketplace Services
5.1 Ontop Platform Terms of Service. By using the Ontop Match Services to onboard your Professionals through the Ontop Platform, you agree to be bound by the Ontop Platform Terms of Service, available at www.getontop.com/legal/terms-of-service (“Platform Terms of Service”).
5.3 AML Policy. Your access to Ontop Match Services is also subject to our anti-money laundering policy (“AML Policy”). You can access our AML Policy manual at www.getontop.com/legal/anti-money-laundering-aml-policy-manual.
6. Access to the Services
6.1 Certain Restrictions. The rights granted to you under these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive product or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future releases, updates, or other added features of the Services shall be subject to these Terms.
6.2 Ownership. Excluding any User Content that you may provide (as defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets relating to the Services and its content are owned by Ontop, its affiliates and/or suppliers. Neither these Terms transfers to you or any third party any rights, title or interest in or to such intellectual property rights.
6.3 Prohibited Activities. Clients may not use the Services to solicit or provide services for the benefit of: (a) an individual, organization, or country that is blocked or sanctioned by the United States, including those identified on the United States Office of Foreign Asset Control (OFAC); (b) any unaffiliated third parties; or (c) any other services not for the benefit of a User. Further, Clients may not use the Platform to solicit or provide Services involving or related to any of the items on the Prohibited Activity List (defined below). If Ontop suspects or determines that Clients are using the Services in any way related to activities on the Prohibited Activity List, Ontop reserves the right to disable Client’s account, freeze any funds in Client’s account, and report Client’s activity to Ontop’s financial services providers and/or other regulatory authorities with jurisdiction over Ontop and/or Client.
7. User Content
7.1 “User Content” means any and all information and content that a user provides to in reference for the use of the Service (e.g., professional profiles, skills and information). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness and/or usefulness to others, or any disclosure of your User Content that personally identifies you or any third party. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Ontop.
7.2 Feedback. If you provide Ontop with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign us any and all rights relating to such Feedback and agree that we shall have the right to use and fully exploit such Feedback and related information in any manner we deem appropriate. We will treat any and all Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not send us any information or ideas that you consider to be confidential or proprietary.
8.1 You agree to indemnify and hold Ontop (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all claims or demands made by any third party due to or arising from (a) your use of the Services provided by Ontop, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. We reserve the right, at your expense, to take on the sole defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claims, actions and/or proceedings when we become aware of them.
8.2 Release. You hereby release and forever discharge Ontop (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly from, or that relates directly or indirectly to, the Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
ONTOP (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT IT WILL BE ACCURATE, COMPLETE, OR RELIABLE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ANY AND ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ONTOP (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THESE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. Term and Termination
Subject to this Section, these Terms will remain in full force and effect while you use the Services. Even after your rights under these Terms are terminated, any of the provisions hereunder which by their nature are meant to survive expiration or early termination of these Terms for any reason will remain in effect.
12.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our website. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective immediately. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Ontop and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Ontop that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Ontop, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Ontop should be sent to: 1321 Upland Dr., PMB 15685 , Houston, Texas 77043. After the Notice is received, you and Ontop may attempt to resolve the claim or dispute informally. If you and Ontop do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Ontop made to you prior to the initiation of arbitration, Ontop will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Ontop pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Ontop, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Ontop.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Ontop in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO SUCH DISPUTES.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Ontop.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Ontop may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court and/or if the dispute is deemed as non-arbitrable by the arbitrator(s) or a court of law, the parties hereby agree to submit to the personal jurisdiction of the courts located within the Southern District of Miami-Dade County, Florida, for such purpose.
12.3 Governing Law. These Terms of Service will be governed and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law provisions.
12.4 Export Controls and Sanctions. You acknowledge that the Website, Platform, and/or any product or service offered by Ontop may be subject to restrictions of the US Government, including but not limited to export controls administered by the US Department of Commerce’s Bureau of Industry and Security (“BIS”) (including the US Export Administration Regulations (“EAR”) and trade and economic sanctions maintained by OFAC (“collectively, “US Export Controls and Sanctions”), and the EU Regulation (EC) No 428/2009 (as amended) (“Regulation 428/2009”) and may be subject to other US, UK and foreign export or import regulations in other countries (“Other Applicable Export Laws”). You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Ontop, or any products utilizing such data, in violation of the US Export Controls and Sanctions, Regulation 428/2009 and Other Applicable Export Laws.
12.5 Electronic Communications. The communications between you and Ontop use electronic means, whether you use our website or send us emails. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy as if it were a hardcopy. The foregoing does not affect your non-waivable rights.
12.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not be constituted as a waiver of such right or provision. The section titles used in these Terms are for convenience only and have no legal or binding effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Ontop is that of an independent contractor, and neither party is an agent or partner of the other. These Terms and your rights and obligations hereunder may not be assigned, subcontracted, delegated or otherwise transferred by you without Ontop’s prior written consent, and any attempted assignment, subcontracting, delegation or transfer in violation of the foregoing will be null and void. Ontop may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
12.7 Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of the third party that owns the Marks.
12.8 Contact Information:
Mailing Address: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808