(Last updated: April 23, 2021)
The following terms of service are terms of a legal agreement (the “Agreement”) between you (“you”, “your”, or “user”) and New Foundation Labs, Inc. d/b/a Otto, its subsidiaries, affiliates, agents and assigns (“Otto”, “we”, “us”, or “our”) which sets forth the terms and conditions for your use of Otto’s application (“App”) and Otto’s website, Ottopay.com, as well as the products and services offered, operated or made available by Otto through ottopay.com or the App (the App, the website, and the products and services, collectively, the “Services”). The Services are owned and operated by Otto, and are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Otto, and this Agreement governs your use of the Services.
THIS AGREEMENT ALSO INCLUDES, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 19 BELOW FOR MORE INFORMATION.
1. ACCEPTANCE OF AGREEMENT
Please carefully review this Agreement before using the Services, or accessing any data thereon. If you do not agree to these terms, you may not access or use the Services.
To use the Services and to accept the Agreement, you must 1) be a legal resident of the United States, 2) be at least 18 years old, 3) not be prohibited by law from using the Services, and 4) not have been suspended or removed from the Services.
2. MODIFICATION OF THIS AGREEMENT
Otto reserves the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on its website, Ottopay.com. You should check this Agreement on Ottopay.com periodically for changes. All changes shall be effective upon posting. We will date the terms with the last day of revision. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. Otto may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.
4. USER INFORMATION ACCURACY AND UPDATES
To access Otto’s Services, you must create a user account with Otto (an “Otto Account”). This process will include creation of a Login ID and password to access the Services. When you sign up for an Otto Account, you agree to provide accurate, current and complete information—such as your name, mailing address, and email address –as may be prompted by any registration forms available through the Services or as otherwise requested by Otto for such information (“User Information”). You further represent that you are a legal owner of, and that you are authorized to provide us with, all User Information and other information necessary to facilitate your use of the Services.
In order to use certain Services, Otto may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Services.
Should any of your User Information change, you agree that you will update this information as soon as possible. To update your User Information, you may log into your User Account, navigate to the Profile section, click on “Settings,” and update your User Information accordingly.
Should you believe or have reason to believe that any of your User Information, including your Login ID and/or password, has been compromised, or that another person is accessing your Otto Account through some other means, you agree to notify us as soon as possible at support@Ottopay.com.
5. THIRD-PARTY AND OTTO CARD INFORMATION
To use the Services, you may direct Otto to retrieve your bank account transaction history, balance information, and/or other information maintained by third-parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). This may include information maintained by your depository institution. Otto works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, including to track bills, to track paycheck deposits, and to track balances. By using the Services, you authorize Otto to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping any passwords and usernames you provide to us so we can retrieve this Third-Party Account Information secure, and for keeping those passwords and usernames up-to-date in your Otto Account. With the exception of information related to your Otto Card, Otto does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Otto is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third-Party Account Information that is displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
6. OVERVIEW OF SERVICES
Otto offers a variety of services and features collectively referred to in this Agreement as the “Services.” These Services enable you to align your bill payments to your cash flow. In particular, Otto assists users through the following services
Expense Management Services – A suite of services and features that can assist you in managing your budget, tracking bills, avoiding overdrafts, managing subscription payments and more. See Section 7 for terms and details.
Otto Bill Payment Services – A service enabling Otto users to pay designated billers via merchant-specific virtual card (an “Otto Card”), with free advances of funds to help you cover bill and subscription payments in the event you do not have sufficient funds to make a scheduled bill payment. See Section 8 for terms and details.
7. OTTO’S EXPENSE MANAGEMENT SERVICES
7.1 Overview of the Expense Management Services
The Expense Management Services are designed to assist you in managing your budget, tracking bills, avoiding overdrafts, managing subscriptions and more. Through the Expense Management Services, Otto will analyze and monitor your Third-Party Account Information from the bank accounts you chose to connect to Otto (each, a “Funding Account”), and based upon analytics, we will attempt to identify all recurring bill payments that are available to make with your Otto Card. If you subscribe to the Expense Management Services, you will have the option to use the Otto Bill Payment Services as well, as further described in Section 8.
7.2 Subscription Fee
The Expense Management Services are subject to a $3 per month subscription fee (the “Subscription Fee”). You must provide a Funding Account, a debit card, or a credit card (a “Payment Method”) for payment of the Subscription Fee. You will be billed for your first Subscription Fee on a monthly basis. If you register with Otto in the last ten (10) days of a given calendar month, you will not be charged for your Subscription Fee payment until the next month. You must either cancel your subscription by logging into your Otto Account or notify us by email at support@Ottopay.com if you do not want to renew your monthly subscription to the Expense Management Services.
Otto will attempt to avoid charging you the Subscription Fee for the Expense Management Services if we detect that your Payment Method does not contain sufficient funds to cover the Subscription Fee during that pay period. If we do not charge you because your Payment Method does not contain sufficient funds, or if our attempt to charge you is declined, Otto reserves the right to terminate your access to the Expense Management Services.
7.3 CREDIT AND DEBIT AUTHORIZATION
If you enroll in the Expense Management Services, you authorize Otto to electronically debit your Payment Method for the $3 Subscription Fee once each month. As applicable, you also authorize Otto to electronically debit and credit your Payment Method or Funding Account, if applicable, to correct erroneous debits and credits. You have the right to receive notice of any debit for the Subscription Fee that would vary in amount from a previous Subscription Fee, but you agree that we only need to notify you in advance if a particular debit from your Payment Method would be more than $3. You acknowledge that, as applicable, the electronic authorization contained in this Section represents your written authorization for automated clearinghouse (“ACH”) and debit card transactions as provided herein and will remain in full force and effect until you notify Otto that you wish to revoke this authorization by emailing firstname.lastname@example.org.
You must notify Otto at least three (3) business days before the scheduled debit date in order to cancel this authorization. When you call or email, please include the name and telephone number associated with Otto Account. Failure to provide correct and complete information may make it impossible for Otto to stop withdrawal of the preauthorized transaction.
You agree to indemnify and hold Otto harmless from and against any loss incurred if any of the information relied upon in your request to stop payment is incorrect or incomplete. If you have followed the instructions in this Section to notify Otto of your desire to revoke your authorization at least three (3) business days before the scheduled debit date, Otto will be liable for your losses or damages directly caused by our failure to stop any preauthorized transaction. If we do not receive notice at least three (3) business days before the scheduled debit date, we may attempt, in our sole discretion, to cancel the transaction. However, we assume no responsibility for our failure to do so.
You warrant and represent to Otto that you have the right to authorize us to charge and credit your Payment Method for payments due to us under this Agreement. You represent that you are capable of saving or otherwise storing a copy of this electronic authorization for your records, and the credit and debit transactions you request comply with the Nacha Rules, if applicable, and applicable law.
8. OTTO BILL PAYMENT SERVICES
8.1 Paying your Recurring Expenses with Advances
The Otto Bill Payment Services enable you to pay for your recurring expenses like a cellphone bill or a video streaming service subscription. To be eligible for the Bill Payment Services, you must have at a history of least 3 months of income deposited into the Funding Account, and your income must be enough to cover the expenses being linked. For each eligible expense that you wish to pay through the Services, we will provide you with an Otto Card that is specific to the selected biller. Otto Cards are made available by Patriot Bank, N.A., member of the Federal Deposit Insurance Corporation, in partnership with Otto. You may integrate your Otto Cards on your biller’s website or you may access your biller’s website through an Otto integration. In each case, Otto may provide you with an advance (each, an “Advance”) to cover the aggregate bill payments made on your Otto Cards in a given billing cycle. We reserve the right to decline a payment if we suspect fraud, illegal activity or other misuse of the Services. You may obtain an Advance without a subscription to the Expense Management Services. To request an Advance with subscribing to the Expense Management Services, please email support@Ottopay.com. As noted, no fee is required to obtain an Advance.
We offer Advances on a nonrecourse basis. Consequently, we warrant to you that we have no contractual or legal claim against you based on a failure to repay, and we will not engage in debt collection activities, place the amount advanced with or sell to a third party, or make any reports to credit reporting agencies regarding your unpaid Otto balance. However, we reserve the right to deny you access to an Advance until you have paid any outstanding Advances.
Please note that Otto does not (A) take possession of your payment funds; (B) provide deposit account services; (C) set the terms of any payment transaction between you and billers; (D) endorse or have any liability for transactions between you and billers; or (E) control or have any liability for returns, refunds, or other questions or disputes you may have with any biller related to any payment transaction. The Otto Bill Payment Services are operated by Otto in conjunction with Dwolla, Inc. and Pay With Privacy, Inc. and each of their financial partners.
8.2 Repayment of Advances
By creating one or more Otto Cards and enabling Otto to pay a bill on your behalf, you authorize us to electronically initiate debits to your Funding Account on or around your paydays for all bill payments made by Otto. Otto will debit your Funding Account in equal installments on or around your paydays to align with your paycheck frequency (thus payment will be made in four or less installments each month). You may choose to repay via one-time automatic debits or enable ongoing automatic debits. If you select automatic debits, such ongoing automatic debits will continue as long as Otto continues making bill payments on your behalf, until you change your payment settings, or until you otherwise revoke your debit authorization. You agree to maintain a balance that is sufficient to fund all bill payments Otto makes on your behalf. Failed or rejected debits may be reinitiated up to two (2) additional times after the first debit (for a total of three (3) debit attempts).
An example of your repayment plan: You have utilized 5 virtual Otto Cards to pay for 5 different expenses which total $500 per month, and your paycheck arrives on the 1st and 15th of every month. We will attempt to debit $250 from your Funding Account soon after each paycheck is deposited to cover the payments made on your Otto Cards.
Although our goal is to help users avoid overdraft fees, Otto is not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees that result from your failure to maintain a sufficient balance in your Funding Account. Otto monitors your balance and will attempt to ensure you have sufficient funds before debiting your account, but Otto makes no warranties that an overdraft will not occur.If we detect that your Funding Account may not contain sufficient funds, Otto may avoid making a withdrawal from your Funding Account to repay Advances.
If we detect that your Funding Account may not contain sufficient funds, Otto may avoid making a withdrawal from your Funding Account to repay Advances. Although our goal is to help users avoid overdraft fees, Otto is not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees that result from your failure to maintain a sufficient balance in your Funding Account. Otto makes no warranties that an overdraft will not occur. If Otto does not make a withdrawal from your Funding Account for any reason, Otto will notify you and may suspend or terminate your access to future Advances.
9. DWOLLA ACCOUNT
10. CONSENT TO ELECTRONIC COMMUNICATIONS AND DOING BUSINESS ELECTRONICALLY
10.1 Communications to Be Provided in Electronic Form
By choosing to use the Services, you will receive from time-to-time disclosures, notices, documents, and any other communications about our Services or Otto from Otto (“Communications”). We can only give you the benefits of our Services by conducting business through the Internet, and therefore we need you to consent to receiving Communications electronically. This Section informs you of your rights when receiving electronic Communications from us. We may discontinue electronic provision of Communications at any time in our sole discretion.
10.2 Communications in Writing
By accepting this Agreement, you agree that electronic Communications shall be considered “in writing” and have the same meaning and effect as if provided in paper form, unless you have withdrawn your consent to receive Communications electronically as stated below. You agree that we have no obligation to provide you Communications in paper format, although we reserve the right to do so at any time.
10.3 Minimum Requirements
You understand that, in order to view and/or retain copies of the electronic Communications, you will need either:
A computer with an Internet connection (PCs should be running Windows 7 or higher and Internet Explorer 10 or higher, Chrome, or Firefox; Macs should be running OSX and Safari, Chrome, or Firefox); or
A mobile device with access to the Internet running either Apple iOS 10.3 or higher, or Android 4.1 or higher.
You will also need a valid email address, sufficient storage space to save Communications or the capability to print the Communications from the device on which you view them.
10.4 Withdrawing Consent
You may withdraw your consent to receive Communications electronically by contacting us at support@Ottopay.com. If you withdraw your consent, we reserve the right to limit or close your Otto Account. If you withdraw your consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected. You agree to pay any amount owed to Otto such as Subscription Fees or outstanding balances even if you withdraw your consent and we close or limit access to your User Account and/or the Services.
10.5 Updating Records
As noted above, you can update your User Information by logging on to your User Account or by emailing us at support@Ottopay.com.
11. SMS MESSAGING AND TELEPHONE CALLS
You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as alerts, or questions about your use of the Services. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Otto and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
12. LIMITATIONS OF USE
You agree to use the Services only for lawful purposes. You are prohibited from any use of the Services that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of the Services, including but not limited to unauthorized entry into Otto’s systems, misuse of passwords, or misuse of any information posted on through the Services is strictly prohibited. Otto makes no claims concerning whether use of the Services is appropriate outside of the United States. If you access the Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not 1) try to reverse engineer, disassemble, decompile, or decipher the Services or software making up the Services, 2) navigate or search the Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), 3) use a means other than Otto’s provided interface to access the Services, 4) use the Services in a way that could impair, overburden, damage, or disable any portion of the Services, or 5) mirror any material contained on the Services.
Otto reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Otto also reserves the right to take action to protect Otto, other users, and other third parties from any liability, fees, fines, or penalties. We make take actions including, but not limited to: 1) updating information you have provided to us so that it is accurate, 2) limiting or completely closing your access to the Services, 3) suspending or terminating your ability to use the Services on an ongoing basis, 4) taking legal action against you (note, as described in Section 19.2, Otto will not take action against you for failure to repay an Advance), 5) holding you liable for the amount of Otto’s damages caused by your violation of this Agreement.
13. INTELLECTUAL PROPERTY RIGHTS
The Services are owned and operated by the Otto. All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the “Otto Materials”) are owned exclusively by Otto or the licensors or suppliers of Otto and are protected by U.S. copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Otto Materials displayed on the Services, without our prior written permission in each instance. You may not use, copy, display, distribute, modify or reproduce any of Otto Materials found on the Services unless in accordance with written authorization by us. Otto prohibits use of any of the Otto Materials as part of a link to or from the Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Otto Materials, or whether any mark or logo is an Otto Material, should be referred to Otto. All rights related to the Otto Materials are hereby reserved. You agree that the Otto Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Otto. You acknowledge that the Otto Materials are and shall remain the property of Otto. You may not modify, participate in the sale or transfer of, or create derivative works based on any Otto Materials, in whole or in part.
Otto may terminate this Agreement at any time without notice, or suspend or terminate your access and use of the Services at any time, with or without cause, in Otto’s absolute discretion and without notice. You may terminate your access and use of the Services by contacting us at support@Ottopay.com. The following provisions of this Agreement shall survive termination of your use or access to the Services: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions, and any other provision that by its terms survives termination of your use or access to the Services.
Otto further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Services at any time with or without notice.
15. DISCLAIMER OF WARRANTIES
THE APP, OTTOPAY.COM AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, OTTO AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “OTTO PARTIES”) EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE APP, OTTOPAY.COM OR THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APP, OTTOPAY.COM OR THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “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.”
THE OTTO PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE APP, OTTOPAY.COM, OR THE SERVICES, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE OTTO PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE APP, OTTOPAY.COM OR SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
Please note, the ability to exclude warranties varies in different jurisdictions. To the extent that a jurisdiction places limits on the ability for a party to exclude warranties, these exclusions exist to the extent permitted by law. Because of this jurisdictional variance, some of the above exclusions may not apply to you.
16. NO LEGAL TAX OR FINANCIAL ADVICE; ALERTS
OTTO DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE APP, OTTOPAY.COM OR THE SERVICES. OTTO IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. OTTO ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISION. OTTO WILL MAKE REASONABLE EFFORTS TO PROVIDE TIMELY AND ACCURATE ALERTS TO YOU, BUT YOU ACKNOWLEDGE AND UNDERSTAND THAT ALERTS MAY BE DELAYED OR PREVENTED FOR VARIOUS REASONS. OTTO DOES NOT GUARANTEE THE DELIVERY, ACCURACY, OR TIMELINESS OF ALERTS. FURTHER, OTTO IS NOT LIABLE FOR ANY ERRORS IN THE DELIVERY OR CONTENT OF AN ALERT, AND OTTO IS NOT LIABLE FOR ACTIONS YOU TAKE, OR DO NOT TAKE, IN RELIANCE ON ALERTS. OTTO IS NOT LIABLE FOR ANY THIRD PARTY RELIANCE ON ALERTS.
17. LIMITATION OF LIABILITY
THE OTTO PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING OUT OF OR RELATING TO YOUR USE OF THE APP, OTTOPAY.COM OR THE SERVICES, THE OTTO MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE APP, OTTOPAY.COM OR THE SERVICES, EVEN IF OTTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE OTTO PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE APP, OTTOPAY.COM OR THE SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE APP, OTTOPAY.COM OR THE SERVICES. IN NO EVENT WILL THE OTTO PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE APP, OTTOPAY.COM OR THE SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES.
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the Otto Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys’ fees arising out of or relating to (i) your access to, use of or alleged use of the Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues 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, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. Otto reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of Otto.
19. DISPUTE RESOLUTION BY BINDING ARBITRATION
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN Section 19.3 BELOW.
19.1 Election to Arbitrate. You and Otto agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 19 (the “Arbitration Provision”), unless you opt out as provided in Section 19.3 below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 19.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Otto retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
19.2 Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to support@Ottopay.com, within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. If you don’t provide Otto with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.
19.3 Judicial Forum for Disputes. In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Otto with an Arbitration Opt-out Notice; or (iii) this “Dispute Resolution by Binding Arbitration” section is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in Los Angeles County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
19.4 Informal Dispute Resolution. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting support@Ottopay.com. Similarly, Otto will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within 30 days after the email noting the Claim is sent, you or Otto may initiate an arbitration proceeding as described below.
19.5 WAIVER OF RIGHT TO LITIGATE. Unless you timely provide Otto with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
19.6 NO CLASS ACTIONS. You and Otto agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Otto may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Otto will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR OTTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 19.6 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
19.7 Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 19.7, if a party seeks injunctive relief that would significantly impact other Otto users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
19.8 Arbitration Location. Unless you and Otto otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Otto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
19.9 Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.
19.11 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
19.12 Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 19.6 “No Class Actions,” if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 19.6 “No Class Actions,” to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 19.4.
19.13 Changes. Notwithstanding the provisions of the “Modification of this Agreement” section above, if Otto changes this “Dispute Resolution by Binding Arbitration” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to support@Ottopay.com within 30 days of the date such change became effective, as indicated in the “Last revised” date above or in the date of Otto’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Claim between you and Otto in accordance with the provisions of this “Dispute Resolution by Binding Arbitration” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
If any provision of this Agreement is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction, this Agreement’s remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
You agree that if Otto does not enforce any of its legal rights or remedies under this Agreement, or other legal rights or remedies Otto has under applicable laws, this shall not be construed as a formal waiver of those rights or remedies or any other rights in any way whatsoever.
22. GENERAL PROVISIONS