Last Updated: 2022-07-21
This Master Service Agreement (“Terms,” and together with the Web Order Form (the initial “Order”) completed in connection with agreeing hereto, and any other subsequent Orders referencing these Terms, placed by Customer, and accepted by Otto from time to time, the “Agreement“) set forth the terms and conditions pursuant to which Otto, Inc., a Delaware corporation (“Otto“) shall provide the Customer identified on the Order(s) (“Customer”) access to its software as a service platform (the “Platform”) and the Services contemplated by the Order(s) and hereby. Each Order is subject to these Terms & Conditions. Capitalized terms used herein but not defined herein have the meanings ascribed to them in the applicable Order.
PLEASE REVIEW THESE TERMS CAREFULLY. THEY IMPOSE BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THESE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THESE TERMS OR CUSTOMER’S ACCESS TO OR USE OF THE PLATFORM, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS (EACH, A “CLAIM”), AND CUSTOMER AGREES THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 10(g) CAREFULLY TO UNDERSTAND CUSTOMER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. Access and Use.
(a) Provision of Access to Platform. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement and to the payment of all Fees due to Otto, Otto hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 10(i)) right to access and internally use the Platform during the Contract Term. Use shall be made only by Customer’s employees and independent contractors (“Authorized Users”). Otto shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in Section 2(a). Without limitation, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Platform available to third parties (other than Customer’s own Clients); (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Services and Support. During the Contract Term, Otto will provide Customer with access to the Platform, set-up and configuration, and support services via email and chat during the hours of 9:00 am – 5:00 pm central time, Monday-Friday, excluding certain nationally recognized holidays (the “Services”).
(d) Suspension. Notwithstanding anything to the contrary in this Agreement, Otto may suspend the Services and Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Otto reasonably determines that (A) there is a threat or attack on any of the Otto IP; (B) Customer’s or any Authorized User’s use of the Platform disrupts or poses a security risk to the Platform, Otto, or to any other customer or vendor of Otto; (C) Customer, or any Authorized User, is using the Otto IP for fraudulent or illegal activities; (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Otto’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Otto has suspended or terminated Otto’s access to or use of any third-party services or products required to enable Customer to access the Platform; or (iii) in accordance with Section 3(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Otto shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Service Suspension. Otto shall use commercially reasonable efforts to resume providing the Services and access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Otto will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(e) Third-Party Products and Components. Otto may from time to time make third-party products (“Third-Party Products”) available to Customer, and in addition, the Platform may be comprised in part of certain third-party components (“Third-Party Components”). For purposes of this Agreement, such Third-Party Products may be subject to their own, or to certain additional, terms and conditions. Further, Third Party Components may be subject to separate terms and conditions. For more information regarding terms and conditions applicable to Third-Party Products and Third-Party Components, visit televet.com/thirdpartyapps If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products or the features of the Platform that utilize the same.
2. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Platform resulting from access thereto provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.
(b) Veterinary License. Customer represents and warrants that Customer and its applicable Authorized Users maintain all necessary veterinary licensure and will abide by all state and federal laws. In addition, Customer represents and warrants that any veterinarian or nurse added to the Platform meets the legal requirements to perform the services rendered.
(c) CUSTOMER IS RESPONSIBLE AND LIABLE FOR ALL APPLICABLE STATE AND NATIONAL STATUTORY OR REGULATORY REQUIREMENTS PERTAINING TO THE OPERATION OF ITS BUSINESS, AND ANY VIOLATIONS THEREOF. THE CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO ANY STATUTORY OR REGULATORY REQUIREMENTS RELATED TO VETERINARY MEDICINE, CONDUCTING REMOTE HEALTHCARE, A VALID CLIENT-PATIENT RELATIONSHIP, PROPER TREATMENT AND DIAGNOSIS, AND/OR PRESCRIPTION MEDICATION.
3. Fees and Payment.
(a) Fees. Customer shall pay Otto the non-refundable fees (“Fees”) as set forth in the applicable Order, plus any chargebacks associated with Customer incurred by Otto, in each case without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in the applicable Order. If Customer fails to make any payment when due, without limiting Otto’s other rights and remedies: (i) Otto may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Otto for all reasonable costs incurred by Otto in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Otto may suspend Customer’s and its Authorized Users’ access to any portion or all of the Platform until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for and shall, at Otto’s option pay to Otto for remittance, or remit, all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Otto’s income. Otto shall have no liability for any taxes owed by Customer as a result of its use of the Service Customer is also solely responsible for taxes it may owe on amounts remitted to it in accordance with Section 3(c).
(c) Transfer of Income. Otto will collect all payments made by Clients through the mobile application or other Client interface as reflected within the Platform (e.g. per-consult fees, mobile application subscription fees, and other fees for products and services for Clients). Otto will transfer fees to Customer, provided that Otto may offset any such remittance for deductions and/or to satisfy amounts owned to Otto hereunder.
(d) Usage/Service Fees. Customer shall pay Otto the Usage/Service Fee percentage as set forth in the applicable Order form. Usage/Service Fee is charged to the Customer on amounts invoiced through the Platform. Service/Usage Fee covers the variable costs related to providing the Services. Payment processing network fees for refunds, chargebacks, disputes, foreign currency exchange or international payments will be the responsibility of the Customer and charged by Otto to Customer as incurred.
(i) Customer may process invoices that include charges for prescription medications through Otto terminals. For digital invoicing, Customer may process invoices that include charges for prescription medication if Customer’s primary business is veterinary services.
4. Confidential Information. From time to time during the Contract Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Otto’s Confidential Information includes, without limitation, its Platform specifications and documentation, and any technical information concerning the Platform. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Subject to Section 5(b), on the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. During the Contract Term, Otto will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client’s Confidential Information. Notwithstanding the foregoing, Client acknowledges that, notwithstanding any security precautions deployed by Otto, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Confidential Information. Otto cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5. Intellectual Property Ownership; Feedback; License to Customer Data.
(a) Otto IP. Customer acknowledges that, as between Customer and Otto, Otto and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Platform (collectively, “Otto IP”) and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Except for the limited rights and licenses expressly granted under this Section 1(a), nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Otto IP.
(b) Customer Data and Content. Otto acknowledges that, as between Otto and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer Content. “Customer Data” means any information and data in any form or medium, that is submitted, posted, or otherwise transmitted by Customer or an Authorized User through the Services, including directly or via access to an integration with a third-party offering (e.g. a practice management software solution). “Customer Content” means the audiovisual recording, notes, and other copyrightable material generated via Customer’s and its Authorized Users’ use and operation of the Platform. Customer hereby grants to Otto an irrevocable, non-exclusive, transferable, sublicensable, royalty free license during the Contract Term to use Customer Data and Customer Content in order to provide the Platform and the Services to Customer and Clients. In addition, Customer hereby grants to Otto an irrevocable, perpetual, non-exclusive, sublicensable, royalty-free license to use Customer Data and Customer Content to (i) improve the Service and Otto’s technology, and (ii) compile and synthesize aggregated and/or de-identified information (“De-Identified Data”). The foregoing is not intended to include a right to use Customer Data or Customer Content to solicit Customer’s Clients on behalf of another Customer. Notwithstanding anything in this Agreement to the contrary, to the extent that Otto collects or generates De-Identified Data, such De-Identified Data will be owned solely by Otto. Otto shall ensure that Customer is not identified or identifiable as the source of any such De-Identified Data. Customer agrees and acknowledges that it may not have access to the De-Identified Data.
(c) Feedback. if Customer or any of its Authorized Users submits to Otto any comments, suggestions, or other feedback regarding the Platform (“Feedback”), Customer agrees that Otto will be free to use such Feedback for any purpose without accounting or obligation. Otto reserves all rights not expressly granted to Customer in this Agreement.
6. Limited Warranty and Warranty Disclaimer.
(a) Otto warrants that the Platform will conform in all material respects to its documentation and that the Services will be performed in a professional and workmanlike manner. Otto does not make any representations or guarantees regarding uptime or availability of the Platform. THE FOREGOING WARRANTY DOES NOT APPLY, AND TELEVET STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a), THE TELEVET IP IS PROVIDED “AS IS” AND TELEVET HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TELEVET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a), TELEVET MAKES NO WARRANTY OF ANY KIND THAT THE TELEVET IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Otto from and against any losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any third party claim, suit, action, demand or proceeding arising out of or related to (i) the services performed by Customer or its Authorized Users, (ii) the Customer Data or the Customer Content, including without limitation any claim that the Customer Data or Customer Content infringes or misappropriates such third party’s intellectual property or other proprietary rights, and/or (iii) Customer’s or any Authorized User’s negligence or willful misconduct, or violation of industry standards, laws or regulations (including without limitation as they may apply to licensure or practicing via teleconference). Customer may not settle any claim against Otto unless Otto consents to such settlement in writing. Otto reserves the right to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
8. Limitations of Liability.
IN NO EVENT WILL TELEVET BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TELEVET WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL TELEVET’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO TELEVET UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Term and Termination.
(i) Contract Term. The term of this Agreement begins on the last date of signature and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the expiration or termination of the last subscription ordered hereunder (the “Contract Term”).
(ii) Subscription Term and Renewals. The initial subscription shall commence on the Bill Date specified on the initial Order and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the duration of the Subscription Term specified on such Order. Unless otherwise provided on an Order, additional Orders placed and accepted after the initial Order shall have a pro-rated term that is coterminous with the initial Order hereunder placed. Subscriptions will automatically renew for successive periods of equal to the duration of the Subscription Term set forth on the initial Order placed hereunder unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term (each a “Subscription Renewal Term”). Notices of subscription non-renewal initiated by Customer must be sent to email@example.com. Pricing for each Subscription Renewal Term shall be the same as the term just-ending unless Otto provides prior written notice of an increase, not less than thirty (30) days prior to renewal.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Otto may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Otto’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(b) or Section 4;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(iv) Customer may terminate this Agreement not less than thirty (30) days after notification to Customer of an amendment proposed by Otto in accordance with Section 10(d); provided that if Customer expressly declines to be bound by such amendments, the Agreement shall terminate on the effective date of the proposed amendment.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, all Orders and Subscriptions shall terminate and Customer shall immediately discontinue use of the Platform and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies of the Otto IP and certify in writing to the Otto that the Otto IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund, provided that in the event of a termination in accordance with Section 9(b)(iv), any prepaid subscription fees Customer has paid shall be refunded pro-rated from the date of termination. Unless this Agreement has been terminated by Otto pursuant to Section 9(b)(i) or (ii) (in which case Customer will have no right to obtain a data export), within the ninety (90) day period following the termination or expiration of this Agreement, Customer may request and Otto shall provide to Customer an export of its consultation data.
(d) Survival. This Section 9(d) and Sections 1(b), 3, 4, 5, 6(b), 7, 8, 9(c) and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. Unless otherwise specified herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Otto be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Otto’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemics, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement, or waiver of any provision herein, is effective unless it is in writing and signed by an authorized representative of each Party, provided that in addition to the foregoing, Otto may propose amendments to this Agreement that shall become effective upon the sooner to occur of (i) a subsequent click-to-accept mechanism presented within the Platform and accepted by Customer or (ii) Customer’s failure to respond to such notification within thirty (30) days of receipt, and in either such case such amendment(s) shall be deemed to be accepted by Customer. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(g) Binding Arbitration and Class Action Waiver.
(i) ALL CLAIMS (DEFINED ABOVE) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES HEREOF AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(ii) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(iii) CUSTOMER AND TELEVET EACH: (i) AGREE THAT ALL CLAIMSWILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTIONREQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, CUSTOMER AND TELEVET EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN HOUSTON, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(iv) Notwithstanding anything to the contrary, Customer and Otto may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section.
(v) If Otto implements any material change to this Section, such change will not apply to any Claim for which Customer provided written notice to Otto before the implementation of the change.
(h) Insurance and Waiver of Subrogation. Customer should protect against any risk of loss with the appropriate insurance coverage, and is solely responsible for obtaining all such insurance coverage. To the fullest extent permitted by applicable law and the applicable insurance policies you obtain and maintain, Customer releases Otto from all liability for any loss, occurrence, event or condition covered by your insurance.
(i) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Otto. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.