Terms and Services

Please read this Arbitration Agreement carefully. It is part of your contract with OmniThink and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

10.2.1 Disputes with Customers. Disputes between OmniThink and a Customer will be resolved under the separate agreement between them, not these Terms.

10.2.2 Governing Law. These Terms will be construed in accordance with the laws of the State of California, USA without reference to its choice of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods. For any dispute not subject to arbitration, the Federal and State courts located in the County of Santa Clara, California will be the exclusive venue for any claim or dispute between the parties and the parties hereby consent to the personal jurisdiction of those courts for such purposes. The prevailing party in any dispute under these Terms will be entitled to its costs and reasonable attorneys’ fees.

10.2.3 Arbitration. You and OmniThink agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 10.2 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms (collectively, “Claims”). The only disputes excluded from this broad prohibition are the litigation of certain claims regarding intellectual property rights and small claims court claims, as provided below.

For any dispute with OmniThink, you agree to first contact us at legalnotice@omnithink.ai and attempt to resolve the dispute with us informally. With the exception of claims regarding intellectual property rights, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation, and reasonable attempt to conduct good-faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

In the unlikely event that OmniThink has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any Claims by binding arbitration by JAMS, under the Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class or representative actions. JAMS may be contacted at www.jamsadr.com.

The arbitration will be conducted in San Francisco County, California, unless you and OmniThink agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Each party will also be responsible for their own attorneys’ fees.

Except as set forth in this Section, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).

The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’ Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 10.2 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.

10.2.4 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR SIMILAR, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO ALL METHODS OF DISPUTE RESOLUTION, INCLUDING CLASS ARBITRATION, AND YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OMNITHINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF THERE IS A FINAL JUDICIAL DETERMINATION THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF THIS PARAGRAPH’S LIMITATIONS AS TO A PARTICULAR REMEDY, THEN THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND MAY BE SOUGHT IN COURT. THE PARTIES AGREE, HOWEVER, THAT ANY ADJUDICATION OF REMEDIES NOT SUBJECT TO ARBITRATION SHALL BE STAYED PENDING THE OUTCOME OF ANY ARBITRABLE CLAIMS AND REMEDIES.

10.2.5 OmniThink will provide 30 days’ notice of any changes to this Section 10.2, and changes will become effective on the 30th day, as further described in Section 10.1. When the updated version of this Section 10.2 takes effect, any unfiled claims of which OmniThink does not have actual notice are subject to the revised clause.