Terms of Service

Before either party initiates arbitration, that party must first provide the other party with a written notice of the dispute (a “Notice of Dispute”) and attempt in good faith to resolve the dispute informally for at least thirty (30) days. A Notice of Dispute to Company must be sent by email to [email protected] and by mail to Openserve Holdings, LLC Attn: Legal Department, 5911 N Honore Ave, Suite 104, Sarasota, FL 34243. A Notice of Dispute to you may be sent to the email address or mailing address associated with your account.

The Notice of Dispute must include: (a) the name and contact information of the party providing notice; (b) sufficient information to identify the applicable account, transaction, or use of the Services; (c) a reasonably detailed description of the nature and basis of the dispute; and (d) the specific relief sought. The parties will use reasonable, good-faith efforts to resolve the dispute during the thirty (30)-day informal-resolution period.

Compliance with this Section 17.1 is a condition precedent to initiating arbitration, except to the extent prohibited by applicable law. Any applicable limitations period and filing-fee deadline will be tolled during the thirty (30)-day informal-resolution period.

Except for disputes expressly excluded under Section 17.5 below, you and Company agree that any dispute, claim, or controversy arising out of or relating to these Terms, the Services, your account, your relationship with Company, or any products, features, content, artificial intelligence models, outputs, applications, tools, subscriptions, transactions, communications, advertising, marketing, or other services made available by or through Company (collectively, “Disputes”) will be resolved exclusively through final and binding arbitration.

This arbitration agreement is intended to be interpreted broadly and includes, to the fullest extent permitted by law, Disputes based in contract, tort, statute, fraud, misrepresentation, consumer-protection law, privacy or data-protection law, common law, equity, or any other legal theory, as well as Disputes arising before you accepted these Terms and Disputes arising after termination of these Terms or your use of the Services.

The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”), governs the interpretation and enforcement of this Section 17 and the arbitration agreement contained herein.

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA rules applicable to the dispute and in effect at the time the arbitration is initiated, including, as applicable, the AAA Consumer Arbitration Rules for consumer disputes or the AAA Commercial Arbitration Rules for non-consumer disputes, as modified by this Section 17. If the AAA determines that its Mass Arbitration Supplementary Rules apply, those rules will also apply except as expressly modified by Section 17.8 below.

The applicable AAA rules and information regarding arbitration are available from AAA at www.adr.org.

The arbitration will be conducted by a single neutral arbitrator unless the applicable AAA rules require otherwise. The arbitrator may award on an individual basis any remedy or relief that would otherwise be available in a court of competent jurisdiction, including damages and injunctive or declaratory relief, subject to the limitations contained in these Terms and applicable law.

The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Judgment on the arbitration award may be entered in any court having jurisdiction.

Unless applicable law or the AAA rules require otherwise, the arbitration may be conducted by telephone, videoconference, on written submissions, or in person at a mutually agreed location. For a consumer, any in-person hearing will take place at a location reasonably convenient to the consumer consistent with the applicable AAA rules.

Payment of filing, administrative, hearing, and arbitrator fees will be governed by the applicable AAA rules and fee schedules, subject to applicable law.

Company will pay arbitration fees that it is required to pay under applicable law or the applicable AAA rules. Nothing in these Terms is intended to require a consumer to pay arbitration costs that would make enforcement of this arbitration agreement unlawful.

Each party will ordinarily bear its own attorneys’ fees and costs except where applicable law, the applicable AAA rules, or the arbitrator’s award permits recovery of such fees or costs.

(a) Small Claims. Either you or Company may bring an individual action in an appropriate small claims court if the action qualifies for that court’s jurisdiction. If such an action is transferred, removed, appealed, or otherwise proceeds on a non-individual basis or outside the jurisdiction of the small claims court, either party may elect to require arbitration pursuant to this Section 17 to the extent permitted by applicable law.

(b) Intellectual Property and Injunctive Relief. Either party may bring an action in a court of competent jurisdiction seeking temporary, preliminary, or other injunctive or equitable relief necessary to prevent or restrain actual or threatened infringement, misappropriation, or violation of that party’s copyrights, trademarks, trade secrets, patents, or other intellectual-property rights. This exception does not permit a party to avoid arbitration of claims seeking monetary damages or other relief that does not require immediate judicial intervention.

(c) Governmental Authorities. Nothing in these Terms prevents you from reporting a matter to, communicating with, or seeking relief from a federal, state, local, or other governmental or regulatory authority to the extent applicable law permits you to do so.

To the fullest extent permitted by law, you and Company agree that each may bring claims against the other only in an individual capacity and not as a plaintiff, claimant, or class member in any purported class, collective, consolidated, coordinated, or representative proceeding.

Unless you and Company expressly agree otherwise in writing, the arbitrator may not consolidate the claims of more than one person and may not preside over any form of class, collective, consolidated, or representative proceeding, except for the administrative coordination of individual arbitrations expressly contemplated by Section 17.8 and the applicable AAA Mass Arbitration Supplementary Rules. Each arbitration must otherwise remain an individual proceeding and result in an individual award.

You and Company each knowingly and voluntarily waive, to the fullest extent permitted by law, any right to a trial by jury.

You may opt out of the arbitration agreement contained in this Section 17 by providing Company with written notice of your decision to opt out within thirty (30) days after the date on which you first accept these Terms.

Your opt-out notice must include: (a) your full name; (b) the email address associated with your account; (c) your mailing address; and (d) an unambiguous statement that you wish to opt out of the arbitration agreement contained in Company’s Terms of Service.

The opt-out notice must be sent either by email to [email protected], or by mail to Openserve Holdings, LLC Attn: Arbitration Opt-Out, 5911 N Honore Ave, Suite 104, Sarasota, FL 34243. Your opt-out notice must be sent or postmarked within the thirty (30)-day period. You do not need to send an opt-out notice by both email and mail.

Opting out of arbitration will not affect your ability to use the Services, and Company will not penalize you for exercising your right to opt out. If you timely opt out, neither you nor Company will be bound by the arbitration agreement in this Section 17 with respect to Disputes between you and Company, but all other provisions of these Terms, including any otherwise applicable forum-selection provisions, will continue to apply.

To promote the efficient and orderly resolution of substantially similar claims while preserving the parties’ agreement that claims will be resolved on an individual basis, the following procedures apply if twenty-five (25) or more substantially similar Demands for Arbitration are asserted against Company or related parties by or with the assistance, coordination, or representation of the same law firm, organization, group of law firms, or coordinated group (a “Mass Arbitration”).

(a) AAA Mass Arbitration Rules. The parties agree that the AAA Mass Arbitration Supplementary Rules and the applicable mass-arbitration fee schedule will apply to a Mass Arbitration to the extent determined applicable by AAA, except as modified by this Section 17.

(b) Individual Demands Required. Each claimant must submit an individual Demand for Arbitration containing the information required by the applicable AAA rules, and each claimant remains an individual party to an individual arbitration. Nothing in this Section authorizes class arbitration or permits claims to be adjudicated on a class, collective, or representative basis.

(c) Initial Conference and Mediation. Following the initiation of a Mass Arbitration, the parties will participate in any administrative conference, global mediation, process-arbitrator proceeding, or other preliminary procedure required or made available under the applicable AAA Mass Arbitration Supplementary Rules. The parties will cooperate in good faith with AAA and any appointed process arbitrator or mediator to develop procedures designed to resolve the claims fairly and efficiently.

(d) Bellwether Proceedings. To the extent permitted by AAA and unless the parties agree to another procedure, either party may request that the AAA or a Process Arbitrator establish a reasonable bellwether process under which a representative group of individual cases is selected to proceed first. Any bellwether cases will be selected using a neutral process that gives reasonable consideration to selections proposed by each side. Each bellwether case will be adjudicated individually and will result in an individual award. No decision or award in a bellwether case will have binding effect on any claimant who was not a party to that individual proceeding, except to the extent otherwise agreed in writing.

(e) Settlement Discussions. Following completion of the initial bellwether proceedings, the parties will participate in good-faith settlement discussions or mediation concerning the remaining individual claims before the remaining cases proceed, to the extent directed by AAA or the Process Arbitrator or otherwise agreed by the parties.

(f) AAA Authority. The AAA or a Process Arbitrator appointed under the AAA Mass Arbitration Supplementary Rules may resolve disputes concerning the interpretation, applicability, administration, and implementation of the procedures in this Section 17.8 to the extent permitted by the applicable AAA rules.

Nothing in this Section 17.8 creates or authorizes class arbitration. Unless the parties expressly agree otherwise in writing, each claimant’s substantive claims will be adjudicated individually.

Except as expressly provided below or where applicable law requires a court to decide the issue, the arbitrator will have authority to resolve disputes concerning the interpretation, applicability, enforceability, or formation of this arbitration agreement.

Notwithstanding the foregoing, any dispute concerning the validity or enforceability of the Class Action and Jury Trial Waiver in Section 17.6, or whether a dispute may proceed on a class, collective, consolidated, or representative basis, will be decided by a court of competent jurisdiction and not by the arbitrator, unless applicable law requires otherwise.

If Company makes a material change to this Section 17 after the date you most recently accepted these Terms, Company will provide notice as required by applicable law. To the extent required by applicable law, a material change will not apply to a Dispute of which Company had actual notice before the effective date of the change.

Except as otherwise provided in this Section 17, if any portion of this arbitration agreement is determined to be unlawful, invalid, or unenforceable, that portion will be severed and the remaining portions will remain in full force and effect.

If a final judicial determination concludes that applicable law prohibits enforcement of the prohibition on class, collective, consolidated, or representative relief with respect to a particular claim or request for relief, then that particular claim or request for relief will be severed from arbitration and may proceed in a court of competent jurisdiction, while all arbitrable claims and requests for relief will remain subject to arbitration to the fullest extent permitted by law.

This Section 17 survives termination of these Terms, termination or deletion of your account, and cessation of your use of the Services.