Terms Of Service

ClearDoc, Inc. D/B/A OpenReel

Last Updated Date: March 1, 2021

Welcome, and thank you for your interest in OpenReel. These terms of service (“Terms”) are between you and ClearDoc, Inc. (doing business as OpenReel) (“OpenReel,” “we,” “our,” or “us”), and establish the terms and conditions that apply to you when you use the Service (as defined below).

BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept all such changes. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.

THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE, AS DESCRIBED IN SECTION 12 (DISPUTE RESOLUTION AND ARBITRATION) BELOW. THOSE TERMS MAY NOT APPLY TO YOU IF YOU ARE LOCATED OUTSIDE OF THE UNITED STATES. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING info@openreel.com WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE. THIS CLAUSE AND SECTION 12 WILL NOT APPLY IF YOU RESIDE IN THE UNITED KINGDOM OR EUROPEAN UNION.

Please review our Privacy Policy (located atwww.openreel.com/privacy). You acknowledge that we will collect and use your personal data in accordance with the Privacy Policy.

1.     Use of the Service.

A.     Service. The “Service” includes OpenReel’s website located athttps://www.openreel.com (the “Site”), OpenReel’s software-as-a-service platform (“OpenReel Platform”), and OpenReel’s mobile application (“App”), each as may be updated, relocated, or otherwise modified from time to time; all content and services OpenReel makes available through the Site or App; and all intellectual property rights related to the foregoing. The Service allows you to capture, direct, and edit video. Any person who accesses or uses the Service, whether on their own behalf or on behalf of any third party, is an “OpenReel User.” If you are accessing or using the Service on behalf of a third party (an “OpenReel Enterprise Customer”), your access to and use of the Service is also subject to the terms of OpenReel’s agreement with the OpenReel Enterprise Customer (the “Enterprise Agreement”), including the OpenReel Enterprise Customer’s obligation to pay fees for your access to and use of the Service.

B.     License. Subject to your compliance with these Terms (and the OpenReel Enterprise Customer’s compliance with the Enterprise Agreement, if applicable), OpenReel hereby grants you a non-exclusive, revocable, non-transferable license to download a copy of the App and access and use the OpenReel Platform; in each case, solely for the following purposes: (1) if you are accessing and/or using the App and OpenReel Platform on behalf of or on invitation from an OpenReel Enterprise Customer, you may access and use the App and OpenReel Platform solely in connection with such OpenReel Enterprise Customer’s internal business purposes and in accordance with the restrictions that apply to the license type they purchased for you; and (2) if you are an individual purchasing access to the App and OpenReel Platform on your own behalf, you may access and use the Service for your personal use and not for resale.

C.     Equipment. The Service requires the use of telecommunications, computer hardware, software, video, and audio equipment (the “Equipment”). OpenReel does not provide the Equipment, and is not responsible for any performance issues to the extent related to the Equipment. Payment for the Equipment and the Equipment’s functionality is solely your responsibility (or the responsibility of the OpenReel Enterprise Customer, if applicable). You may be required to give OpenReel (and, if applicable, the OpenReel Enterprise Customer) access to the Equipment and permission to use the Equipment to capture video and audio. You are solely responsible for maintaining the integrity and security of your Equipment and systems. OpenReel is not responsible for performing, and is not liable for any failure to perform, any backup of any Works (defined below) in or through the Services. OpenReel recommends that you perform regular exports and backups of your Works. If you are using the Service on behalf of an OpenReel Enterprise Customer, you agree that: (1) the OpenReel Enterprise Customer’s access to the Equipment is governed by any limitations or agreements between you and the OpenReel Enterprise Customer; and (2) OpenReel is not responsible, and will not be liable, for any such access. Additionally, you are solely responsible for the payment of all applicable fees associated with internet or cellular service you use in connection with the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by your carrier).

2.     Registration; Eligibility; Restrictions.

A.     OpenReel Users. OpenReel might require you to complete a registration process to access certain parts of the Service. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.

B.     Accuracy of Information. If you provide any information to us that is not current, complete, or accurate, OpenReel may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.

C.     Eligibility. You represent and warrant that: (1) you are at least 18 years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. OpenReel provides the Service from the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.

D.     Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify OpenReel immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at info@openreel.com. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You may not share your login credentials with any third party. OpenReel will not be liable for any loss that you incur as a result of someone else using your login credentials or account. You may be held liable for any losses incurred by OpenReel or a third party due to someone else using your account or login credentials.

E.     Your Responsibilities. You may use the Service solely for lawful purposes, as intended through the provided functionality of the Service. You may not (and you may not allow or assist any third party to):

(1)    use, copy, modify, create derivative works of, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations described in the package you have purchased (and, if applicable, in the Enterprise Agreement);

(2)    rent, lease, or otherwise permit third parties (including any third party that provides marketing, advertising, public relations, or video or other digital media services) to use the Service, or reformat, mirror, or frame any portion of the Service;

(3)    except on behalf of an OpenReel Enterprise Customer (if applicable), use the Service to provide services to third parties (e.g., as a service bureau or agency), including rebranding the Service;

(4)    circumvent or disable any security or other technological features of the Service;

(5)    probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;

(6)    gain unauthorized access to the Service, to other OpenReel Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;

(7)    reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);

(8)    remove any proprietary notices or labels from the Service or any related materials;

(9)    use the Service to transmit: (i) any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (ii) any material, non-public information about individuals or companies without the authorization to do so; or (iii) any trade secret of any third party;

(10)   use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;

(11)   use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;

(12)   restrict, discourage, or inhibit any person from using the Service;

(13)   disclose personal information about a third party or another OpenReel User on the Service or obtained from the Service without the consent of such third party or OpenReel User, or solicit, harvest, or collect information about other OpenReel Users without their consent;

(14)   violate any applicable international, federal, state, provincial, or local laws or regulations;

(15)   use the Service in violation of OpenReel’s or any third party’s intellectual property or other proprietary or legal rights;

(16)   express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;

(17)   use the Services as a video conferencing tool or for any purpose not contemplated by OpenReel’s documentation; or

(18)   use or access the Service to build a competing service.

We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.

3.     User Works; Confidentiality.

A.     Works. You may use the Service to upload, create, or edit video and/or audio recordings, templates, and other materials (the “Works”) through OpenReel’s remote video capture technology, screen recordings, or otherwise. By creating or transmitting Works, or by posting Works to any area of the Service, you grant OpenReel and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, make, have made, sell, offer for sale, and import Works in any media now known or hereafter developed, for the purpose of providing, enhancing, and developing the Service, without compensation to you. You grant OpenReel and its designees the right to use your name, likeness, photograph, and voice (“Likeness”), to the extent your Likeness is incorporated into any Works, in connection with providing the Service to you (and to the OpenReel Enterprise Customer, if applicable).

B.     Monitoring. We have the right (but not the obligation) to: (1) monitor the Works and use of the Service; and (2) disclose Works and the circumstances surrounding their transmission to any third party to comply with legal obligations or governmental requests or to protect OpenReel. If you believe any content violates our member policies, please contact OpenReel immediately at info@openreel.com so that we can consider its editing or removal.

C.     Representations. You represent and warrant that: (1) you are the creator and owner of the Works or otherwise have sufficient rights and authority to grant the rights granted herein; (2) OpenReel’s use of the Works in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (3) the Works do not and will not slander, defame, or libel any other person; (4) all Works will comply with applicable law and you will only use and distribute Works in accordance with applicable law; and (5) you have and will maintain all necessary rights, consents, licenses, and waivers required to create, record, submit, publish, and use the Works for your intended purposes, including consents, licenses, and waivers from: (i) copyright owners, artists, actors, directors, performers, writers, producers, or any other individuals appearing in the Works; (ii) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI, and SESAC); and (iii) the owners of musical compositions and sound recordings embodied in the Works; (6) unless you have received prior written authorization from the applicable third party, the Works do not contain any confidential information of any third party; and (7) if applicable, you have sufficient rights to allow the OpenReel Enterprise Customer to access and use the Equipment in accordance with Section 1.C (Equipment).

D.     Confidentiality. From time to time during the term of these Terms, OpenReel may disclose or make available to you information about its business. You acknowledge that all knowledge, information and data provided by OpenReel to you that is not generally known or available publicly, whether or not marked, designated, or otherwise identified as “confidential” with respect to the business, operations and marketing of OpenReel’s products and services, intellectual property of OpenReel that you may learn or discover, including information regarding the Service, is confidential information of OpenReel and you will not use or disclose such confidential information to any third party without OpenReel’s prior written consent.

4.     Ownership.

A.     OpenReel IP. The Service, including any content (excluding the Works), templates, modifications, enhancements, and updates, and all intellectual property rights therein (collectively, “OpenReel IP”), is owned by OpenReel and its licensors. No ownership rights in the OpenReel IP are transferred to you by these Terms. You do not have any rights in or to the OpenReel IP except for the limited express rights granted in these Terms.

B.     Trademarks. You acknowledge that OpenReel has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “OpenReel” and in the other marks and design marks displayed on the Service. You acknowledge that this name and these marks are famous and internationally known. You will not challenge the validity of, or OpenReel’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. You may not use our name or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All goodwill arising from your use of the foregoing name and marks will inure exclusively to the benefit of OpenReel.

C.     Works. As between you and OpenReel, you, your licensors, or the OpenReel Enterprise Customer on whose behalf you act (as applicable) own the Works, including all intellectual property rights therein. No ownership rights in the Works are transferred to OpenReel by this Agreement. OpenReel does not have any rights to the Works except for the limited express rights granted in this Agreement.

D.     Feedback. If you give OpenReel feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to OpenReel all right, title, and interest in and to the Feedback, and OpenReel is free to use the Feedback without payment, attribution, or restriction.

5.     Data.

        A.     Usage Data. OpenReel may collect and analyze data relating to your use of the Service that is aggregated in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). OpenReel may collect, process, and use Usage Data for any purpose, including to improve the Service and develop new products, services, features, and functionality.

        B.     Special Notice for International Use. Recognizing the global nature of the Internet, you agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside. If you are using the Service from the European Union or other regions with laws governing data collection and use, then you agree to the transfer and processing of your information to and in the United States.

6.     Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by OpenReel infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:

A.     a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

B.     identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);

C.     identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow OpenReel to locate the material on the Service;

D.     the name, address, telephone number, and email address (if available) of the complaining party;

E.     a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

F.     a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send OpenReel a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; seewww.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to info@openreel.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. There may be penalties for false claims under the DMCA.

7.     Payment Terms and Order Processing.

A.     Fees. If your access to the Service is on behalf of an OpenReel Enterprise Customer, this Section 7 may not apply to you. Access to the Service, or certain features of the Service, may require you to pay fees, including one-time fees or fees on a subscription basis, and OpenReel may provide you the option to activate recurring automatic payments for recurring fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Service, you authorize OpenReel or its third-party service providers to periodically charge, until cancellation, all accrued sums. Recurring subscriptions automatically renew unless they are cancelled via a method described in the Service at least 24 hours before the end of the current subscription period. Fees are based on services purchased and not actual usage, but your use of the Service may be subject to usage limits in accordance with the Service package you (or the OpenReel Enterprise Customer, if applicable) select. If you exceed your usage limits, extra charges may apply.

B.     Payment Processing. Payment processing services for OpenReel may be provided by a third-party payment processor, such as Bill.com or Stripe Inc. (“Payment Processor”). The Payment Processor uses your credit card to make payments for the Service. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the applicable agreement with the Payment Processor. For Stripe Inc., this is theStripe Connected Account Agreement, which includes theStripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the applicable Payment Processor agreement, which may be modified by such Payment Processor from time to time. As a condition of OpenReel enabling payment processing services through a Payment Processor, you agree to provide OpenReel accurate and complete information about you, and you authorize OpenReel to share it and transaction information related to your use of the payment processing services provided by OpenReel. Additional fees may apply to payments made via credit card.

8.     Term and Termination.

A.     Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue as long as you continue to access or use the Service, unless earlier terminated by OpenReel. If you are a consumer OpenReel User residing in the European Union, you agree that your right to terminate your subscription, if applicable, will immediately cease upon your first use of the Service. If your access to the Service is on behalf of an OpenReel Enterprise Customer, these Terms will terminate upon termination of the Enterprise Agreement.

B.     Termination and Other Remedies. Either party may terminate these Terms, effective upon written notice to the other party, if the other party materially breaches these Terms and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. OpenReel may take whatever lawful actions it may deem appropriate in response to actual or suspected violations of these Terms, including termination of these Terms and/or the suspension or termination of your access to the Service or your account. Additionally, OpenReel may terminate these Terms, at any time, if OpenReel ceases to provide the Services or if OpenReel consummates a Change of Control Transaction. “Change of Control Transaction” means any: (1) merger, sale of outstanding shares of stock of OpenReel, or similar transaction or series of related transactions in which a third party acquires majority voting power of OpenReel’s shares of stock; or (2) sale or transfer of all or substantially all of OpenReel’s assets.

C.     Effect of Termination. The following Sections of these Terms will survive termination or expiration of these Terms: 1.A, 1.C, 2.E, 4–14, and 16–19. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms in accordance with their terms.

D.     Deactivation. Subject to any limitations in the Enterprise Agreement (if applicable), OpenReel may, at any time and without notice to you: (1) restrict, deactivate, and/or terminate your access to the Service (or any portion thereof); or (2) terminate or modify the Service (or any portion thereof). OpenReel will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.

9.     Disclaimer of Warranty.

A.     DISCLAIMER. OPENREEL MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED “AS IS.” OPENREEL DOES NOT WARRANT THAT THE SERVICE WILL SATISFY YOUR REQUIREMENTS, IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to you.

B.     Third-Party Information. You acknowledge that any information you obtain from another OpenReel User comes from those individuals, and not from OpenReel, and that OpenReel, to the fullest extent permitted by law, is not responsible for any of the information these third parties may supply or for any statements, claims, or representations they make. To the fullest extent permitted by law, OpenReel disclaims any such statements, claims, or representations.

10.    Indemnification.

A.     Defense. At OpenReel’s option and request, you will defend OpenReel, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “OpenReel Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on your: (1) breach of any representation, warranty, or covenant in these Terms; (2) use of the Service in a manner not authorized under these Terms; or (3) development, production, and exploitation of the Works (each, a “Claim”). If OpenReel requests you to defend an OpenReel Party from any Claim, OpenReel will: (i) give you prompt written notice of the Claim; (ii) grant you full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of an OpenReel Party without OpenReel’s prior written consent. OpenReel may participate in the defense of a Claim at its own expense and with counsel of its own choosing.

B.     Indemnification. You will indemnify the OpenReel Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against an OpenReel Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by an OpenReel Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.

11.    Limitation of Liability.

A.     EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER OPENREEL NOR ANY OPENREEL PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF OPENREEL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

B.   DAMAGES CAP. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPENREEL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO OPENREEL DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE LIABLITY FOR DEATH OR PERSONAL INJURY OR FRAUD OR FRAUDULENT MISREPRESENTATION.

C.     INDEPENDENT INVESTIGATION. YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICE AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICE. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.

D.     BASIS OF THE BARGAIN. THIS SECTION 11 (LIMITATION OF LIABILITY) IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.    Dispute Resolution and Arbitration.

A.     Generally. If you are not a resident of the United States, this Section 12 (Dispute Resolution and Arbitration) will only apply to you to the extent applicable law in your country of residence permits. In the interest of resolving disputes between you and OpenReel in the most expedient and cost-effective manner, you and OpenReel agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes covers all claims arising out of or related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. BY ENTERING INTO THESE TERMS, YOU AND OPENREEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. THESE DISPUTE RESOLUTION TERMS WILL APPLY TO YOU AND OPENREEL UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 12.J (OPT OUT).

Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.

B.     Exceptions. Despite the provisions of Section 12.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.

C.     Arbitrator. Any arbitration between you and OpenReel will be governed by the Arbitration Rules (collectively, “ICC Rules”) of the International Chamber of Commerce (“ICC”), as modified by these Terms, and will be administered by the ICC. The ICC Rules and filing forms are available online at www.iccwbo.org, or by contacting OpenReel. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this agreement to arbitrate.

D.     Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). OpenReel’s email address for Notice is info@openreel.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to OpenReel, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or OpenReel may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or OpenReel must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, OpenReel will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by OpenReel in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

E.     Fees; Location; Language. If you commence arbitration in accordance with these Terms, OpenReel will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the ICC Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephone hearing; or (3) by an in-person hearing as established by the ICC Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the ICC Rules. In that case, you agree to reimburse OpenReel for all monies previously disbursed by it that are otherwise your obligation to pay under the ICC Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language. 

F.     Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.

G.     No Class Actions. YOU AND OPENREEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 12 (DISPUTE RESOLUTION AND ARBITRATION)). Unless both you and OpenReel agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

H.     Modifications to this Arbitration Provision. If OpenReel makes any future change to this arbitration provision, other than a change to OpenReel’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to OpenReel’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and OpenReel. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.

I.      Enforceability. If Section 12.G (No Class Actions) is found to be unenforceable or if the entirety of this Section 12 (Dispute Resolution and Arbitration) is found to be unenforceable, then the entirety of this Section 12 will be null and void and the exclusive jurisdiction and venue described in Section 16.A (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.

J.     Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 12 (Dispute Resolution and Arbitration), you may opt out by notifying OpenReel in writing of your decision by sending, within 30 days of the date you receive these Terms, an email to info@openreel.com, stating clearly your full name, address, and intent to opt out of this Section 12. Should you choose not to opt out of this Section 12 within the 30-day period, you and OpenReel will be bound by the terms of this Section 12. You have the right to consult with counsel of your choice concerning this Section 12. You will not be subject to retaliation if you exercise your right to opt out.

13.    Cooperation with Authorities. OpenReel may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, OpenReel may disclose any information as OpenReel deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in OpenReel’s sole discretion.

14.    Protected Activity Not Prohibited. Nothing in these Terms will limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding (“Protected Activity”) that may be conducted by any international, federal, state, provincial, or local government agency or commission (“Government Agencies”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, OpenReel. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute OpenReel confidential information to any parties other than the Government Agencies.

15.    Compliance with Applicable Law. Each party will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under this Agreement.

16.    Miscellaneous.

A.     Governing Law. These Terms are governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 12 (Dispute Resolution and Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.

B.     Injunctive Relief. If you breach Sections 2 (Registration; Eligibility; Restrictions), 3.D (Confidentiality), or 4 (Ownership), OpenReel may suffer irreparable harm, and monetary damages may be inadequate to compensate OpenReel. Accordingly, OpenReel may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.

C.     Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide OpenReel the full benefits and rights described in these Terms.

D.     Assignment. You may not assign these Terms or delegate your performance without OpenReel’s prior written consent, and any attempt to do so is void. OpenReel may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.

E.     Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.

F.     No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.

G.     Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.

H.     Subcontractors. OpenReel may use subcontractors or other third parties to perform its obligations under these Terms, but OpenReel will remain responsible for all such obligations.

I.      Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.

J.     Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. These Terms do not create any agency, partnership, or joint venture relationship between the parties.

K.     No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms, except as may be described in the Enterprise Agreement or in Section 18 (Notice Regarding Apple).

L.     Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to OpenReel will be sent to:

ClearDoc, Inc. dba OpenReel

425 N. Broadway

#201, Jericho, NY 11753

Email: legal@openreel.com

Attn: Legal Department

M.    Force Majeure. OpenReel will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond OpenReel’s reasonable control (a “Force Majeure Event”), so long as OpenReel uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes OpenReel to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.

N.     Interpretation. If OpenReel provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”

17.    NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, OpenReel Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

18.    Notice Regarding Apple. This Section 18 only applies to the extent you are using the App on an iOS device. You acknowledge that these Terms are between you and OpenReel only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (A) product liability claims; (B) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

19.    Contact Us. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at legal@openreel.com.