These Website Terms of Service (these “Terms of Service”) is agreed to between ESP5 Property Commercial Services SL, and its affiliates and subsidiaries (collectively, “Otter”) and you, or if you represent an entity or other organization, that entity or organization (in either case, “You” or “Your”). These Terms of Service govern your use of the websites that link to these Terms of Service (the “Website”) and offers users (“Users”) the ability to access certain content on the Website (“Content”). These Terms of Service applies to the Website and Content available through the Website, regardless of the Website through which You access or use the Website and Content.
PLEASE CAREFULLY READ THESE TERMS OF SERVICE. BY ACCESSING OR USING THE WEBSITE AND CONTENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, OTTER IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE WEBSITE AND CONTENT AND YOU MUST NOT ACCESS OR USE THE WEBSITE AND CONTENT.
Unless You later enter into any other agreements with Otter regarding the Website and Content, these Terms of Service are the complete and exclusive agreement between You and Otter regarding Your access to and use of the Website and Content. These Terms of Service supersede any prior agreement or proposal, oral or written, and any other communications between You and Otter relating to Your use of the Website and Content as a User of the Website.
1. DEFINITIONS. Terms used in these Terms of Service have the definitions given in these Terms of Service or, if not defined in these Terms of Service, have their plain English meaning as commonly interpreted in the United States, even if Otter provides a translated version of these Terms of Service. To the extent any ambiguity or inconsistency exists between the English version of these Terms of Service and a version in any other language, the English (as interpreted in the United States) version of the Terms of Service controls.
2. TERM. These Terms of Service are entered into as of the earlier of the date You first accessed or used the Website and Content (the "Effective Date") and will continue until terminated as set forth herein.
3. MODIFICATIONS. Otter reserves the right, at any time, to modify the Website and Content, with or without notice to You, by making those modifications available on the Website. Otter also reserves the right, at any time, to modify these Terms of Service. Otter will inform You of the presence of any changes to these Terms of Service by posting those changes on the Website or by providing You with notice through the Website. Any modifications will be effective immediately upon posting on the Website or delivery of such notice through the Website. You may terminate these Terms of Service as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Website and Content following such notice period.
5. CONTENT AND THIRD PARTY SERVICES.
6. TERMINATION. These Terms of Service may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under these Terms of Service. Except as otherwise stated in these Terms and Conditions, upon termination or expiration of these Terms of Service for any reason: (1) all rights and subscriptions granted to You under these Terms of Service will terminate; and (2) You will immediately cease all use of and access to the Website and all Content and Services (including, without limitation, all Content You obtained prior to termination). Sections titled Definitions, Termination, Suspension, Content and Third Party Service Providers, Website Technology, Ownership, Representations and Warranties, Indemnity, Limitation on Liability, Data Privacy, Feedback, Claims of Infringement, Disputes, Governing Law and Venue, Notices, Linked Sites, and Additional Terms will survive any expiration or termination of these Terms of Service.
7. SUSPENSION. Without limiting Otter’s right to terminate these Terms of Service, Otter may also suspend Your access to the Website or any Content, with or without notice to You, upon any actual, threatened, or suspected breach of these Terms of Service or applicable law or upon any other conduct deemed by Otter, in its sole discretion, to be inappropriate or detrimental to the Website, Otter, or any other User or third party.
8. WEBSITE TECHNOLOGY. The Website, Content, and the databases, software, hardware, and other technology used by or on behalf of Otter to operate the Website, and the structure, organization, and underlying data, information and software code thereof (collectively, the "Technology"), constitute valuable trade secrets of Otter. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Terms and Use; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.
9. OWNERSHIP. Otter retain all right, title, and interest, including, without limitation, all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights (“IPR”), in and to the Technology and any additions, improvements, updates, and modifications. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Website and Content under these Terms of Service. The Otter name, logo, and all product and service names associated with the Website and Content are trademarks of Otter and its licensors and third party providers and You are granted no right or license to use them.
10. REPRESENTATIONS AND WARRANTIES.
11. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Otter and its officers, directors, shareholders, affiliates, employees, agents, service providers, contractors, assigns, users, customers, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any Indemnified Party arising in any manner from: (1) Your access to or use of the Website, or any Content; (2) Your collection and disclosure of any Content, (3) Your violation of applicable Laws; and (4) Your breach of any representation, warranty, or other provision of these Terms of Service. Otter will use reasonable efforts to provide You with notice of any such claim or allegation, and Otter will have the right to participate in the defense of any such claim at its expense.
12. LIMITATION ON LIABILITY. OTTER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS TO OR USE OF THE WEBSITE AND CONTENT, EVEN IF OTTER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. OTTER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE AND ALL CONTENT PROVIDED UNDER THESE TERMS OF SERVICE OR THROUGH THE WEBSITE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10. YOU AGREE THAT OTTER WOULD NOT ENTER INTO THESE TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OTTER’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. FEEDBACK. If You provide Otter any feedback or suggestions regarding the Website and Content (“Feedback”), You hereby assign to Otter all rights in the Feedback and agree that Otter shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to You. Otter will treat any Feedback You provide to Otter as non-confidential and non-proprietary. You agree that You will not submit to Otter any information or ideas that You consider to be confidential or proprietary.
15. DISPUTES. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms of Service, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms of Service and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to these Terms of Service (each, a "Dispute"), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association ("AAA") then in effect (the "Rules"). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the "Initial Period") after either party to these Terms of Service delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Otter in London, England. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or pled to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
16. GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under these Terms of Service, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of England and Wales, as such laws apply to contracts between residents of California without regard to conflict of laws provisions thereof. Subject to Section 15 (Disputes), each party will bring any action or proceeding arising from or relating to these Terms of Service exclusively in the courts of England, and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Otter.
17. NOTICES. Unless otherwise specified in these Terms of Service, any notices required or allowed under these Terms of Service will be provided to Otter by postal mail to the address for Otter listed on the Website. Otter may provide You with any notices required or allowed under these Terms of Service by sending You an email to any email address You provide to Otter, provided that in the case of any notice applicable both to You and other Users of the Website, Otter may instead provide such notice by posting on the Website. Notices provided to Otter will be deemed given when actually received by Otter. Notice provided to You will be deemed given 24 hours after posting to the Website or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
18. LINKED SITES. The Website and Content may contain links to third-party sites or content that are not under the control of Otter. If You access a third-party site or content from the Website, then You do so at Your own risk and Otter is not responsible for any content on any linked site. You may establish a link to the Website, provided that the link does not state or imply any sponsorship or endorsement of Your site by Otter or any group or individual affiliated with Otter. You may not use on Your site any Content or marks appearing on the Website in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Website without prior written consent.
19. ADDITIONAL TERMS. Unless otherwise amended, these Terms of Service will exclusively govern Your access to and use of the Website and Content, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Website and Content. All waivers by Otter under these Terms of Service must be in writing or later acknowledged by Otter in writing. Any waiver or failure by Otter to enforce any provision of these Terms of Service on one occasion will not be deemed a waiver by Otter of any other provision or of such provision on any other occasion. If any provision of these Terms of Service is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to these Terms of Service will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. You agree that each of Otter’s service providers shall be considered a third party beneficiary of the above provisions, with all rights to enforce such provisions as if a service provider were a party to these Terms of Service. Neither these Terms of Service nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Otter. Any assignment in violation of the foregoing will be null and void. Otter may assign these Terms of Service to any party that assumes Otter’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.