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Terms of Service

Last Updated 06-10-2020

Thank you for using the Hoss Service (as defined below), a third-party API tracking and analytics service. 

To be eligible to register for a Hoss account and use the Hoss Service, you must review and accept the terms of this Hoss Terms of Service (this “Agreement” or these “Terms”) by clicking on the “I’VE READ AND ACCEPT THE TERMS” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE HOSS SERVICE, YOU AGREE TO THESE TERMS AND CONDITIONS WITH HOSS TECHNOLOGIES, INC. (“Hoss”).  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I’VE READ AND ACCEPT THE TERMS” BUTTON AND YOU SHOULD NOT USE THE HOSS SERVICE. 

In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Hoss account or using the Hoss Service on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Hoss that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization).

Hoss may revise these Terms from time to time. If Hoss does revise these Terms, the revised Terms will supersede prior versions. Unless Hoss says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Hoss will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Hoss has on file. For other revisions, Hoss will update the effective date of these Terms at the top of the page. Hoss encourages you to check the effective date of these Terms whenever you visit Hoss’ website or account portal. Your continued access to or use of the Hoss Service constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Hoss Service and Hoss is not obligated to provide you with the Hoss Service.

IMPORTANT NOTES:

·         HOSS DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE HOSS SERVICE, AND THESE TERMS LIMIT HOSS’ LIABILITY TO YOU.

·         DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE HOSS SERVICE MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.

1.                   Definitions


1.1               The following terms, when used in this Agreement will have the following meanings:

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without the use of or reference to the disclosing party’s Confidential Information.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Hoss for the Hoss Service.

“Hoss Service” means the API analytics service made available by Hoss, and all related documentation, software and intellectual property provided by Hoss in relation thereto.

2.                   Hoss Service


2.1               Provision of Hoss Service.  Subject to the terms and conditions of this Agreement, Hoss grants to Customer a limited, personal, non-exclusive, non-transferable license to use and access the Hoss Service pursuant to this Agreement.

2.2               Customer Limitations.  The rights granted herein are subject to the following restrictions (the “License Restrictions”).  Customer will not, and will not permit anyone else, to directly or indirectly:

(a)                attempt to (i) probe, scan or test the vulnerability of the Hoss Service, (ii) circumvent, disable, or breach any digital rights management, usage rules, or  other security or authentication measures or features of the Hoss Service without proper authorization, or (iii) willfully render any part of the Hoss Service unusable;

(b)                attack, or attempt to attack, the Hoss Service using a denial-of-service attack, a distributed denial-of-service attack or any other attack;

                (c)           use or access the Hoss Service to develop a product or service that is competitive with Hoss’ products or services;

(d)          use the Hoss Service to engage in any misleading or deceptive comparisons involving the Hoss Service or other products or services;

                (e)          reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of the Hoss Service

 (g)         use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access or use the Hoss Service or to store, copy, modify, distribute, or reseller any Hoss Service Content; 

(h)          rent, lease, or sublicense Customer’s access to the Hoss Service to another person;

(i)            use the Hoss Service or any Hoss Service Content for any purpose other than Customer’s own internal business use;

 (k)         remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Hoss Service or any Hoss Service Content; or          

(l)            otherwise use the Hoss Service (i) to engage in any illegal activity, (ii) to infringe or violate any third party rights, or (iii) otherwise outside the scope expressly permitted hereunder.

2.3               Customer Responsibilities.

                (a)          Customer will (i) be responsible for all use of the Hoss Service under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Hoss Service and notify Hoss promptly of any such unauthorized access or use, and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Hoss Service, including as set forth in the Documentation.

                (b)          Customer is responsible for maintaining the confidentiality of Customer’s login, password and account and for all activities that occur under Customer’s login or account.  Hoss reserves the right to access Customer’s account in order to respond to Customer’s requests for technical support.   Hoss has the right, but not the obligation, to monitor the Hoss Service, Hoss Service Content, or Customer Content (as defined below).  Customer further agrees that Hoss may remove or disable any such content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content), or for no reason at all.

2.4               Third Party Websites.   The Hoss Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Hoss has no control over such sites and resources and Hoss is not responsible for and does not endorse such sites and resources.  Customer further acknowledges and agrees that Hoss will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource.   Any dealings Customer has with third parties found while using the Service are between Customer and the third party, and Customer agrees that Hoss is not liable for any loss or claim that Customer may have against any such third party.

2.5               Customer Content.  Customer is solely responsible for any content, data, information, feedback, suggestions, text, content and other materials that Customer posts on or through the Hoss Service or that Hoss processes in connection with the Hoss Service (“Customer Content”).  By providing or granting Hoss access to Customer Content, Customer grants Hoss a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid, sublicensable, and transferable license to use, analyze, reproduce, and display Customer Content in connection with providing the Service.  In addition, Customer agrees to provide notices, obtain any consents and comply with all applicable laws related to Customer’s use of the Hoss Service, including those related to the use, processing, transfer and disclosure of Customer Content (including, but not limited to, any personal information in the Customer Content).  Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and ownership of all Customer Content.  Hoss does not claim any ownership rights in and to any Customer Content.   

2.6               Data Processing Addendum.  If Customer is a paying subscriber to the Hoss Service, to the extent that Hoss processes any Personal Information (as defined in the DPA) contained in Customer Content that is subject to the Data Protection Legislation (as defined in the DPA), on Customer's behalf, in the provision of the Hoss Service, the terms of the data processing addendum at [https://www.hoss.com/tos/dpa] ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when Customer is the data exporter, Customer’s agreeing to these Terms shall be treated as executing the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.

2.7               California Consumer Privacy Addendum.  If Customer is a paying subscriber to the Hoss Service, to the extent that Hoss processes any Personal Information (as defined in the CCPA Addendum) contained in Customer Content that is subject to the California Consumer Privacy Act (as defined in the CCPA Addendum), on Customer’s behalf, in the provision of the Hoss Service, the terms of the data processing addendum at [https://www.hoss.com/tos/ccpaa] ("CCPA Addendum"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.  Customer’s agreeing to these Terms shall be treated as executing the CCPA Addendum.   

3.                   Fees


3.1               Fees and Payment.  To the extent the Hoss Service or any portion thereof is made available for any fee, Customer will be required to select a payment plan and provide Hoss information regarding Customer’s credit card or other payment instrument.  Customer represents and warrants to Hoss that such information is true and that Customer is authorized to use the payment instrument.  Customer will promptly update its account information with any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur.  Customer agrees to pay Hoss the amount that is specified in the applicable payment plan in accordance with the terms of such plan and this Agreement.  Customer hereby authorizes Hoss to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until Customer terminates its account, and Customer further agrees to pay any charges so incurred.  For clarity, the parties acknowledge that the Hoss Service is made available for professional use by individuals, teams and/or organizations and not for personal, family, or household use.  If Customer disputes any charges Customer must let Hoss know within sixty (60) days after the date that Hoss invoices Customer. Hoss reserves the right to change Hoss’ prices. If Hoss does change prices, Hoss will provide notice of the change on the Site or in email to Customer, at Hoss’ option, at least thirty (30) days before the change is to take effect.  Customer’s continued use of the Service after the price change becomes effective constitutes Customer’s agreement to pay the changed amount.  Hoss may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Hoss thirty (30) days after the mailing date of the invoice, or the Hoss Services may be terminated.  Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Hoss Services other than U.S. taxes based on Hoss’ net income.

3.2               Net of Taxes.  All applicable use, sales and other similar taxes and government charges will be payable by Customer. Customer will not withhold any taxes from any amounts due to Hoss.

4.                   Proprietary Rights and Confidentiality


4.1               Hoss’ Ownership Rights.  As between the parties, Hoss exclusively owns all right, title and interest in and to the Hoss Service.  Except for the express rights granted hereunder, Hoss reserves all rights, title and interests in and to the Hoss Service and Hoss’ Confidential Information.

4.2               Feedback.  Customer may from time to time provide Hoss suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Hoss Service.  Hoss will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Hoss will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4.3               Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

4.4               Trademarks.  “Hoss,” the Hoss logo, and any other product or service name or slogan displayed on Hoss’ Service are trademarks of Hoss and its suppliers or licensors, and may not be copied or used, in whole or in part, without Hoss’ prior written consent or the applicable trademark holder.  Customer may not use any metatags or any other “hidden text” utilizing “Hoss” or any other name, trademark or product or service name of Hoss without Hoss’ prior written consent.  Customer additionally may not copy or use, in whole or in part, the look and feel of the Hoss Service, including all customer graphics, service mark, trademark and/or trade dress of Hoss without Hoss’ prior written consent.  All other trademarks, registered trademarks, product names and company names or logos mentioned in the Hoss Service are the property of their respective owners.  Reference to any products, services, processors or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Hoss.

4.5               Aggregated Information.  Notwithstanding anything to the contrary, Hoss shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Hoss Service and shall be free (during and after the term hereof) to (i) use such data and other information to develop and improve the Hoss Service and other Hoss offerings, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5.                   Disclaimers


5.1               DISCLAIMER.  THE HOSS SERVICE IS PROVIDED TO YOU “AS IS”.  HOSS DOES NOT PROVIDE YOU ANY INDEMNITIES, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE HOSS SERVICE OR ANY OTHER PRODUCT OR SERVICE.  WITHOUT LIMITING THE FOREGOING, HOSS DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL MALICIOUS FILES OR SECURITY THREATS WILL BE DETECTED USING THE HOSS SERVICE OR ANY OTHER PRODUCT OR SERVICE.

6.                   Indemnification


Customer will indemnify, defend and hold harmless Hoss against any claim made or brought against Hoss by a third party arising out of or relating to the Customer Content or Customer’s use or misuse of the Hoss Service.  Hoss will cooperate as reasonably required in the defense of any such claim, at Customer’s expense. Hoss reserves the right, at Customer’s expense, to retain separate counsel for itself in connection with any such claim or, if Customer has not responded reasonably to such claim, to assume the exclusive defense and control of such claim. Customer will also be liable to Hoss for any costs and attorneys’ fees Hoss incurs to successfully establish or enforce Hoss’ right to indemnification under this Section.

7.                   Limitation of Liability

UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL HOSS BE LIABLE TO CUSTOMER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF HOSS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.  THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

8.                   Termination


8.1               Term.  The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.

8.2               Termination and Suspension.  You may terminate your account at any time through the account management tools made available through the Hoss Service.  Hoss may terminate or suspend your account in the event you commit any material breach of any provision of this Agreement and fail to fix that breach within five (5) days after written notice of that breach.  Hoss may also terminate or suspend your account immediately for cause if: (a) there is reason to believe the traffic created from your use of the Hoss Service or your use of the Hoss Service is fraudulent or negatively impacting the operating capability of Hoss Service; (b) Hoss determines, in its sole discretion, that providing the Hoss Service is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Hoss Service; or (c) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Hoss suspends your account, Hoss will make a reasonable attempt to notify you.  Hoss may also terminate your access to any component of the Hoss Service and/or your account for any reason or no reason; provided that if you have subscribed to any portion of the Hoss Service, in Hoss’ election, either (i) such termination will be effective upon expiration of your subscription or (ii) Hoss will provide you with a pro rata refund of prepaid fees for unearned services.  Except as expressly set forth above, no refund will be provided in the event of any suspension or termination of your account or access to any component of the Hoss Service .

8.3               Survival.  Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

9.                   General


9.1               Export Compliance.  Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Hoss Service.

9.2               Publicity.  Customer agrees that Hoss may refer to Customer’s name and trademarks in Hoss’ marketing materials, the Hoss Service or Hoss’ website. Hoss will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). 

9.3               Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

9.4               Waiver.  No waiver of any rights hereunder will be effective unless agreed to in writing by both parties.  Any such waiver will be only to the specific provisions and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.5               Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

9.6               Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

9.7               Governing Law; Venue.  The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of Texas exclusive of its rules governing choice of law and conflict of laws, all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Texas and the parties hereby consent to the personal jurisdiction of these courts.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. 

9.8               Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to Customer must be sent to Customer’s email or other address as set forth in Customer’s account information.   Notices to Hoss must be sent to the following address: Hoss Technologies, Inc., 548 Market St, PMB 87997, San Francisco, California 94104-5401 US, Attn: Legal. 

9.9               Entire Agreement.  This Agreement comprises the entire agreement between Customer and Hoss with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Hoss, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

9.10           Force Majeure.  Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control ("Force Majeure Event"), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

9.11           Government Terms.  Hoss provides the Hoss Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Hoss Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Hoss Service were developed fully at private expense.

9.12           Interpretation.  For purposes hereof, “including” means “including without limitation”.

10.               Agreement to Arbitrate


10.1           First Try Customer Support.  If you have any issues with the Hoss Service or Hoss, you must try to resolve the issue first through Hoss customer support.

10.2           Agreement to Arbitrate.  If the parties are not able to the dispute through Hoss customer support, you and Hoss agree to resolve any dispute arising under this Agreement, or under Hoss’s Privacy Policy, or in relation to the Hoss Service by binding arbitration in Texas or in another location that both parties agree to.  This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after you have stopped using your Hoss account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.

10.3           Exceptions to Agreement to Arbitrate. You and Hoss agree that the parties will go to court to resolve disputes relating to your or Hoss’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents).  Also, either party can bring a claim in small claims court either in Texas or some other place both parties agree on, if it qualifies to be brought in that court.  In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.

10.4           Details of Arbitration Procedure.

(a)                Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association ("AAA"), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA&apis;s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879.  The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies. 

(b)                Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

(c)                 The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement.

(d)                Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

10.5           Class Action Waiver. Both you and Hoss agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you nor Hoss can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action against the other party. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Hoss customers or users, and cannot be used to decide other disputes with other customers or users.  If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.
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