Only One
Terms of Use
Last Updated: 02/18/2022
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE, HTTPS://ONLY.ONE, AND ANY OTHER WEBSITES OF ONLY ONE, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “SITE”) AND THE INFORMATION ON IT ARE MADE AVAILABLE BY ONLY ONE, INC.
Throughout the Terms of Use, the terms: (i) “Only One”, “we”, “us” or “our” refer to Only One, Inc.; and (ii) “you”, “your”, or “user” refer to you and each visitor of the SITE. THE TERMS OF USE GOVERN THE USE OF THE SITE AND APPLY TO ALL USERS VISITING THE SITE BY ACCESS OR USING THE SITE IN ANY WAY, INCLUDING ACCESSING THE INFORMATION AND RESOURCES AVAILABLE OR ENABLED VIA THE SITE. BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR BROWSING THE SITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ONLY ONE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF A COMPANY YOU HAVE NAMED AS THE USER AND TO BIND THAT COMPANY TO THE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS THIS SITE.
PLEASE BE AWARE THAT SECTION 12 OF THE TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THE TERMS OF USE.
Your use of the Site, and participation in certain volunteer opportunities, activities or services provided by Only One (each a “Service” and collectively the “Services”) may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT The Terms of Use IS subject to change by Only One in its sole discretion at any time. When changes are made, Only One will make a new copy of the Terms of Use available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. We will also update the “Effective Date” date at the top of the Terms of Use. Any changes to the Terms of Use will be effective immediately for users of the Site, and/ or Service. Only One may require you to provide consent to the updated Agreement in a specified manner before further use of the Site, and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site, and/or the Services. Otherwise, your continued use of the Site, and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. USE OF THE SERVICES AND ONLY ONE PROPERTIES.
1.1 The Site, the Services, and the information, resources and content available on the Site (each, a “Only One Property” and collectively, the “Only One Properties”) are protected by copyright laws throughout the world. Subject to the Terms of Use, Only One grants you a limited license to reproduce portions of Only One Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Only One in a separate license, your right to use any and all Only One Properties is subject to the Terms of Use.
1.2 Certain Restrictions. The rights granted to you in the Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Only One Properties or any portion of Only One Properties, including the Site, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Only One Properties (including images, text, page layout or form) of Only One; (c) you shall not use any metatags or other “hidden text” using Only One’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Only One Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Only One Properties in order to build a similar or competitive website or service; (g) except as expressly stated herein, no part of Only One Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Only One Properties. Any future release, update or other addition to Only One Properties shall be subject to the Terms of Use. Only One, its suppliers and service providers reserve all rights not granted in the Terms of Use. Any unauthorized use of any Only One Property terminates the licenses granted by Only One pursuant to the Terms of Use.
1.3 Third-Party Materials. As a part of Only One Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Only One to monitor such materials and that you access these materials at your own risk.
2. USE OF THE SERVICES AND ONLY ONE PROPERTIES.
2.1 Only One Properties. You agree that Only One and its suppliers own all rights, title and interest in Only One Properties (including but not limited to, titles, computer code, concepts, artwork, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Only One Properties.
2.2 Trademarks. Only One’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any Only One Properties or in connection with the Services are the trademarks of Only One and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Only One Properties are the property of their respective owners.
2.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Only One through Only One’s e-mail or its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Only One has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Only One a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Only One Properties and/or Only One’s business.
3. USER CONDUCT. As a condition of your use of the Only One Properties, you agree not to use Only One Properties for any purpose that is prohibited by the Terms of Use or by applicable law. You shall not (and shall not permit any third-party) either (a) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) impersonates any person or entity, including any employee or representative of Only One; (v) interferes with or attempt to interfere with the proper functioning of Only One Properties or uses Only One Properties in any way not expressly permitted by the Terms of Use; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against Only One Properties, including but not limited to violating or attempting to violate any security features of Only One Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Only One Properties, introducing viruses, worms, or similar harmful code into Only One Properties, or interfering or attempting to interfere with use of Only One Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Only One Properties.
4. THIRD-PARTY SERVICES.
4.1 Third-Party Websites and Third-Party Applications. Only One Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Only One Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Only One. Only One is not responsible for any Third-Party Websites and Third-Party Applications. Only One provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites and Third-Party Applications or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Site, the Terms of Use and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites and Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
5. Third-Party Provider and Payment Processing Terms. Only One uses Stripe as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). By making a donation on the Site, you agree to be bound by Stripe’s Privacy Policy and hereby consent and authorize Only One and Stripe to share any information and payment instructions you provide with one or more third-party service provider(s) to the minimum extent required to complete your transactions.
6. INDEMNIFICATION. You agree to indemnify and hold Only One, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Only One Party” and collectively, the “Only One Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Only One Property; (b) your violation of the Terms of Use; or (c) your violation of any applicable laws, rules or regulations. Only One reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Only One in asserting any available defenses. This provision does not require you to indemnify any of the Only One Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your access to Only One Properties.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS.
7.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF ONLY ONE PROPERTIES IS AT YOUR SOLE RISK, AND ONLY ONE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ONLY ONE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SITE.
7.2 ONLY ONE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) ONLY ONE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF ONLY ONE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF ONLY ONE PROPERTIES WILL BE ACCURATE OR RELIABLE.
7.3 ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH ONLY ONE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS ONLY ONE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
7.4 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Only One MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
7.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ONLY ONE OR THROUGH ONLY ONE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7.6 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ONLY ONE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ONLY ONE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ONLY ONE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ONLY ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF USE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF ONLY ONE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE ONLY ONE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH ONLY ONE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON ONLY ONE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO ONLY ONE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ONLY ONE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ONLY ONE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ONLY ONE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ONLY ONE PARTIES BE LIABLE TO YOU FOR MORE THAN $100. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ONLY ONE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ONLY ONE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ONLY ONE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ONLY ONE AND YOU.
9 REMEDIES.
9.1 Violations. If Only One becomes aware of any possible violations by you of the Terms of Use, Only One reserves the right to investigate such violations. If, as a result of the investigation, Only One believes that criminal activity has occurred, Only One reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Only One is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Only One Properties, in Only One’s possession in connection with your use of Only One Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms of Use, (c) respond to your requests for customer service, or (d) protect the rights, property or personal safety of Only One, its users or the public, and all enforcement or other government officials, as Only One in its sole discretion believes to be necessary or appropriate.
9.2. Breach. In the event that Only One determines, in its sole discretion, that you have breached any portion of the Terms of Use, or have otherwise demonstrated conduct inappropriate for Only One Properties, Only One reserves the right to:
9.2.1. Warn you via e-mail (to any e-mail address you have provided to Only One) that you have violated the Terms of Use;
9.2.2. Suspend or terminate your access to the Site or Services (pursuant to Section 10.3 below) and/or
9.2.3. Pursue any other action which Only One deems to be appropriate.
10 TERM AND TERMINATION.
10.1. Term. The Terms of Use commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Only One Properties or the Site, unless terminated earlier in accordance with the Terms of Use.
10.2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Terms of Use commenced on the earlier to occur of (a) the date you first used Only One Properties or (b) the date you accepted the Terms of Use and will remain in full force and effect while you use any Only One Properties, unless earlier terminated in accordance with the Terms of Use.
10.3. Termination of Services by Us. If you have materially breached any provision of the Terms of Use, if we decide to discontinue our Services or our Site at any time in our sole discretion, or if we are required to do so by law, we have the right to, immediately and without notice, suspend or terminate your access to the Site or Services we may provide.
10.4. Effect of Termination. We will not have any liability whatsoever to you for any suspension or termination. All provisions of the Terms of Use which by their nature should survive, shall survive termination, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11. INTERNATIONAL USERS. Only One Properties can be accessed from countries around the world and may contain references to Services and that are not available in your country. These references do not imply that Only One intends to announce such Services in your country. Only One makes no representations that Only One Properties are appropriate or available for use in other locations. Those who access or use Only One Properties from other countries do so at their own volition and are responsible for compliance with local law.
12. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Only One and limits the manner in which you can seek relief from us.
12.1. Applicability of Arbitration Agreement. You agree that any dispute or claim or request for relief relating in any way to your access or use of the Site, to any products sold or distributed through the Site, or to any aspect of your relationship with Only One, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Only One may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Terms of Use or any prior version of this Terms of Use.
12.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must e-mail us requesting arbitration and describing your dispute or claim or request for relief to [email protected]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Only One will pay them for you. In addition, Only One will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Only One. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4. Waiver of Jury Trial. YOU AND ONLY ONE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Only One are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
12.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7. Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Only One.
12.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Only One makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Only One at the following address: [email protected]
13. GENERAL PROVISIONS.
13.1. Electronic Communications. The communications between you and Only One may take place via electronic means, whether you visit Only One Properties or send Only One e-mails, or whether Only One posts notices on Only One Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Only One in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Only One provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
13.2. Release. You hereby release Only One Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Only One Properties, including but not limited to, any interactions with Third-Party Websites and Third-Party Applications of any kind arising in connection with or as a result of the Terms of Use or your use of Only One Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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 foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Only One Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder.
13.3. Assignment. The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Only One’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4. Force Majeure. Only One shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Only One Properties, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6. Limitation Period. YOU AND ONLY ONE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR ONLY ONE PROPERTIES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.7. Exclusive Venue. To the extent the parties are permitted under the Terms of Use to initiate litigation in a court, both you and Only One agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in New York County, New York.
13.8. Governing Law and Jurisdiction. The Terms of Use and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms of Use.
13.9. Choice of Language. It is the express wish of the parties that the Terms of Use and all related documents have been drawn up in English.
13.10. Notice. Where Only One requires that you provide an e-mail address, you are responsible for providing Only One with your most current e-mail address. In the event that the last e-mail address you provided to Only One is not valid, or for any reason is not capable of delivering to you any notices permitted by the Terms of Use, Only One’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Only One at the following e-mail address: [email protected]. Such notice shall be deemed given when received by Only One by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.11. Waiver. Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.12. Severability. If any portion of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.13. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
