Last update posted: July 11, 2024
THIS AGREEMENT INCLUDES MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND JURY WAIVER PROVISIONS. BY USING THE TUSCANY SERVICES, YOU AGREE TO THESE PROVISIONS WHICH ARE CONTAINED IN SECTION 11 OF THESE TERMS.
1. INTRODUCTION
This is a legally binding agreement between Tuscany Labs, LLC ("Tuscany", "we", or "us") and you. Tuscany offers a subscription-based service that allows users to access meditation-related content provided over the Internet.
These terms of service (these "Terms"), effective as set forth below, will govern your access and use of our owned and operated website, currently available at ooli.us (the "Site"), any other products, services, or events provided by Tuscany, and all associated ooli features, applications, widgets, and their respective contents branded as ooli, including without limitation, any new features and applications (collectively, the "Tuscany Services").
By using the Tuscany Services in any manner, (i) you agree to these Terms, and (ii) you authorize the collection, use, disclosure and other handling of information as set forth in our privacy policy located at https://www.ooli.us/privacy-policy. You must comply with these Terms and any other policies, rules and guidelines that Tuscany provides in the Tuscany Services. If you do not agree, you may not use the Tuscany Services. If you see something on any of the Tuscany Services that you believe violates our Terms, please report it to support@ooli.us.
If you were a user of any Tuscany Services prior to the date we posted this version of the Terms, the prior version of these Terms will continue to apply until the earlier of: (a) 11:00 a.m. Eastern time on the 30th day after Tuscany posted this version; (b) your first ever use of the Community, or (c) your taking some other action to specifically accept the updated Terms, such as clicking to accept them when opening a new account.
From time to time, we may, in our sole discretion, update these Terms by posting the updated version and updating the "Last Update Posted" date at the top of the page. Unless you first reject the updated Terms by discontinuing all use of the Tuscany Services and sending a notice of termination to termination@ooli.us you will be deemed to accept the changes and they will take effect at the "Update Effective Time", which is the earlier of: (a) 11:00 a.m. Eastern time on the 30th day after Tuscany posts them (or a later date that we specify in the update, if any); (b) your first ever use of a new or changed feature of the Tuscany Services that is subject to the updated Terms, or (c) your taking some other action to specifically accept the updated Terms, such as clicking to accept them. (Provisions (a) and (b) of the preceding sentence do not apply to updates to Section 11 below.) You must send the termination notice from the email address associated with your account, or if this is not possible, you must promptly cooperate with us to identify your account. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the account holder and that you are the actual sender of the termination notice. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. At your request, following your termination, we will issue you a pro-rated refund for any remaining unused portion of subscription fees you have paid. You are prohibited from using the Tuscany Services after sending a notice of termination, except as may be necessary to follow any instructions we may provide via email for authentication of your identity and request. If you violate this requirement and do use the Tuscany Services after sending a notice of termination (and before we block your access), your termination notice will be void as if it had never taken effect, and the updated Terms will take effect (or will have taken effect) at the Update Effective Time.
NOTHING IN THE TUSCANY SERVICES IS A SUBSTITUTE FOR PROFESSIONAL MENTAL HEALTH OR MEDICAL TREATMENT. YOU SHOULD ALWAYS SEEK THE ATTENTION OF A LICENSED MEDICAL PROFESSIONAL FOR ANY CONCERNS.
The Tuscany Services are not available to persons under the age of 16. Parents and guardians may use their account to access content to meditate and learn with their children (and certain content may be designated for such purposes), but children under 16 may not create a Tuscany account, interact with any Tuscany Services on their own, or use the Community even with supervision. If you are between the age of 16 and the age of legal majority in your jurisdiction of residence, you may only use the Tuscany Services if your parent or legal guardian agrees to be bound by these Terms, but you cannot use the Community until you are 18.
You agree not to use the Tuscany Services if we have prohibited you from using them.
2. MEMBERSHIP
Subscription. Your Tuscany subscription will continue and automatically renew until terminated. To use the Tuscany Services you must have Internet access, a device that can utilize the Tuscany Services and, if applicable, a valid form of payment. Additional technology and resource requirements for subscriptions and certain other Tuscany Services are specified in Section 11. You authorize us to charge any form of payment you provide, in connection with your subscription. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle. Your billing will include your subscription fees and any applicable taxes and transaction fees.
Free Trial. Your Tuscany Services may start with a free trial period. Any free trial period is at the sole discretion of Tuscany and we may limit eligibility or duration to prevent misuse. We reserve the right to terminate any free trial period at any time. We may charge you a subscription fee upon expiration of your free trial period. To view the subscription price, please access your account information when you login for the Tuscany Services.
Account. To have a subscription you will need to open a user account. You will be asked to provide us with certain information such as a valid email address or Apple ID. You are solely responsible for maintaining the confidentiality of your account, your email address and Apple ID. You may be assigned a one-time PIN code via email for use in each login instance. You must ensure the information you provide to us is true, accurate, current, and complete to the best of your knowledge, and you must update it when it changes. You may not sell, share, or provide access to your account to anyone else, including without limitation, charging anyone for access to your account, except that (i) you are permitted to use the App to meditate in-person with members of your household and (ii) users under the age of legal majority where they live may share access with their parents and legal guardians so that they may supervise their use.
Cancellation. You can cancel your Tuscany subscription at any time through the settings in your account. Following a cancellation you request, you will continue to have access to the Tuscany Services through the end of your subscription period. If you are dissatisfied with the Tuscany Services or are experiencing financial hardship, you may also request a refund by emailing us directly at support@ooli.us. If you are issued a refund, you may lose access to the Tuscany Services immediately.
Communication Preferences. With your use of the Tuscany Services, you consent to receive communications by email or text. We may send you curated content including newsletters, digests or other promotional materials that may be of interest to you. You may stop receiving our promotional emails by (i) clicking the unsubscribe links contained in emails, or (ii) adjusting the "Email Preferences" in your account. You can opt out of any direct promotional communications by emailing your request to opt out, along with the contact information to which your request applies, to support@ooli.us.
You agree that providing you these Terms (including all updates thereto), agreements, notices, disclosures, and other communications electronically (such as by email, or through the Site) will satisfy any legal requirement that such communications be in writing.
3. CONTENT AND LICENSING
All materials on the Tuscany Services, including the designs, graphics, text, sounds, pictures, videos, software and other files and the selection and arrangement thereof (collectively, "Materials"), are the property of Tuscany or its licensors and are protected by intellectual property laws. Subject to your compliance with these Terms, Tuscany grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use the Tuscany Services solely for your personal, non-commercial use. You will not obtain any ownership interest in the Materials or the Tuscany Services through these Terms or otherwise. The Posting or display of any Materials does not constitute a waiver of any rights in such Materials. All rights to Materials are reserved to their respective copyright owners. Except as expressly authorized by these Terms, you may not copy, reproduce, distribute, republish, download, perform, display, Post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Tuscany or the respective copyright owner. Tuscany authorizes you to use only the Materials that we intentionally make available to you, and you may use them only for your own personal, non-commercial use. You must keep intact all copyright and other proprietary notices contained in the Materials. You may not modify or adapt the Materials in any way or otherwise use them (such as for any public or commercial purposes). The trademarks, service marks, trade names, trade dress and logos (collectively, "Marks") contained or described on the Tuscany Services (including, without limitation, any marks associated with any products available on the Tuscany Services) are the sole and exclusive property of Tuscany and/or its licensors and may not be copied, imitated, or otherwise used, in whole or in part, without the prior written authorization of Tuscany and/or its licensors. In addition, all page headers, custom graphics, button icons and scripts are Marks of Tuscany and may not be copied, imitated or used in whole or in part, without our prior written authorization.
None of the Materials or Tuscany Services may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, re-transmitted in any form or by any means (electronic, mechanical, photocopying, recordation, photo-reproduced, or otherwise), or reproduced without the express prior written permission of Tuscany or its licensors.
You must not hack the Tuscany Services or perform any other activity that may damage, detrimentally interfere with, intercept or expropriate any system, personal information, or other data. You must not perform any activity to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment. You may not use any "deep-link", "page-scrape", "robot", "spider", or other automatic device, program, algorithm, or methodology or any similar or equivalent manual process to access, acquire, copy, or monitor any portion of the Waking Up Services, or in any way reproduce or circumvent any aspect of the Tuscany Services (such as the navigational structure or presentation of any of the Tuscany Services), or to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Tuscany Services. We may use technical means to detect and block any such activity, but our failure to do so is not a waiver of this prohibition. These Terms do not prohibit the normal use of personal accessibility technology (such as a screen reader for individuals with visual impairment) to access Tuscany Services.
You may link to any of our Tuscany Services from your website, blog, application, platform, or services, provided that (a) the link redirects the user to the respective Tuscany Services when the user clicks on the link; (b) you do not insert any intermediate page, splash page, or other content between the link and the Tuscany Services; (c) you do not use the content in a manner that suggests Tuscany, the Tuscany Services, or individuals featured in the Tuscany Services, promote or endorse your or any third party's cause, idea(s), product(s), site(s), application(s), platform(s), or service(s); (d) you do not use the Tuscany Services or any portion thereof for commercial purposes; and (e) you do not use the Tuscany Services in any way that is unlawful or harmful to any individual or entity.
From time to time, you may provide us with comments, suggestions, or ideas for enhancements, improvements, changes, or additions to the Tuscany Services or our business in general, including ideas for new features, materials, and other content ("Feedback"). By providing us Feedback, you grant to us exclusive ownership of the Feedback and of all intellectual property rights and other rights in it, and you will provide us with reasonable cooperation in documenting this grant. Tuscany has no obligation to do anything with Feedback, but we will have the full, worldwide, unencumbered right to use, incorporate, and otherwise fully exercise and exploit any such Feedback via all forms of media, distribution methods, and technology now known or later developed, for any purposes, commercial or otherwise, and to transfer or license our rights in the Feedback, without notice, acknowledgement or compensation to you.
4. MEMBER CONTENT
Certain Tuscany Services may enable you or other users to create, modify, submit, or add (collectively, "Post") text, images, videos, links, votes, likes, communications with other users or third parties, and other files and information ("Member Content"). Member Content includes saved and unsaved drafts of any such material. Member Content is part of the "Materials" defined in Section 3 of these Terms.
Some Member Content might initially be accessible only to only certain users (such as content on spaces we designate as "private" boards), but we may later make that Member Content accessible to all users or to the general public. For this reason, please assume that all your Member Content may become public, though we have no obligation to make it public. (We of course have no plan to publish all the user-to-user messages sent through our direct messaging functionality. However, our Terms do not necessarily prohibit either party to such a message from Posting the content of the message to the Tuscany Services, so long as such Posting does not violate some specific part of the Terms.)
You, or your licensors, as applicable, retain ownership of any copyright or other intellectual property rights you may have in your Member Content, subject to the non-exclusive license granted below.
By Posting Member Content, you grant Tuscany a perpetual, irrevocable, nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, display and distribute, translate, communicate, and otherwise use the Member Content in connection with the operation the Tuscany Services or other aspects of our business, including to use the Member Content for Tuscany's promotional, advertising or marketing purposes, in each case via all forms of media, distribution methods, and technology now known or later developed. For example, we might include content from a Post in an advertisement about the Community or in our Support pages. This license includes the right for Tuscany to make Member Content available to other companies, organizations, business partners, or individuals (including those who collaborate with Tuscany for communication, distribution, or publication) and to make Member Content publicly available. This license also includes the right for us to allow other users of the Tuscany Services to use Member Content in the manner permitted by the then-current Terms.
Although certain parts of the Tuscany Services have features to delete or modify certain Member Content as it is visible to you or others, Tuscany has the right to preserve any version of Member Content despite the use of such features. Tuscany may disclose any version of Member Content as described in our Privacy Policy.
Tuscany may remove or refuse to publish any Member Content, in whole or part, at any time in its sole discretion. You grant Tuscany and its authorized agents the permission to view, monitor, edit, delete or otherwise moderate any Member Content, including any unpublished Member Content, at any time, but you agree that Tuscany has no obligation to do any of that. The fact any particular Member Content is accessible does not mean that we agree with it, support it, or believe it to be safe or reliable, or that it complies with our Terms, or that we have even reviewed it: it means only that we have not deleted it. Your use of Member Content and anything related to it (such as participation in events it mentions) is at your own risk.
You may Post Member Content only if: (1) you own the Member Content or you have obtained all necessary licenses and permissions to Post such Member Content and grant us the rights and licenses described in these Terms, and (2) your Posting of Member Content does not violate any third party's rights or any legal requirement. You agree to pay all royalties, fees, and any other monies owed to any person by reason of any Member Content you Post.
5. RELEASE
To the extent permitted by applicable law, you agree not to hold Tuscany or its owners, officers, directors, shareholders, agents, employees, consultants, affiliates, subsidiaries (collectively with Tuscany, "Tuscany and its Affiliated Parties") responsible or liable for the acts and omissions of users, content providers, and other third parties, including any such acts or omissions that occur at events advertised or organized through — or otherwise mentioned on — the Tuscany Services. Each of the Affiliated Parties will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
To the extent permitted by applicable law, you release and agree to release Tuscany and its Affiliated Parties from all claims, demands, and damages (including both direct and consequential) arising out of or in any way connected with such acts and omissions.
You acknowledge that some events or interactions advertised on, organized through, or otherwise mentioned on the Tuscany Services may carry inherent dangers, such as the risk of illness, bodily injury, disability, or death. By participating in any of these events or interactions, you assume these risks.
6. THIRD PARTY WEBSITES
The Tuscany Services may contain links to third-party websites. If you use these links, you will leave the Tuscany Services and your dealings will solely be with the third-party websites. You agree that Tuscany is not responsible or liable for any content, goods or services provided on or through these outside websites. You use these links at your own risk and liability. We have no responsibility for the content, legality or accuracy of any third-party information, products or services.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOUR USE OF THE TUSCANY SERVICES IS AT YOUR SOLE RISK. TUSCANY IS PROVIDING THE TUSCANY SERVICES ALONG WITH CONTENT AND MATERIALS AND THE OPPORTUNITY TO CONNECT WITH OTHERS ON AN "AS IS" AND "AS AVAILABLE" BASIS. TUSCANY AND ITS AFFILIATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, AND IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TUSCANY MAKES NO WARRANTIES WITH RESPECT TO, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR: (i) MEMBER CONTENT; (ii) ANY THIRD PARTY, OR THIRD-PARTY WEBSITE, THIRD-PARTY PRODUCT, OR THIRD-PARTY SERVICE ACCESSIBLE OR MADE AVAILABLE TO YOU THROUGH THE TUSCANY SERVICES; (iii) THE QUALITY OR CONDUCT OF ANY USER OR OTHER THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE TUSCANY SERVICES, INCLUDING ANY ACTIVITIES, EVENTS, ENGAGEMENT OR INTERACTIONS WITH OTHERS THAT MAY BE FACILITATED THROUGH USE OF THE TUSCANY SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF MEMBER CONTENT. FURTHER, TUSCANY AND ITS AFFILIATED PARTIES MAKE NO WARRANTY THAT THE TUSCANY SERVICES (INCLUDING ANY INFORMATION OR OTHER MATERIAL YOU OBTAIN THROUGH THE TUSCANY SERVICES) WILL (I) MEET YOUR REQUIREMENTS, (II) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) BE ACCURATE OR RELIABLE, (IV) BE OF SUFFICIENT QUALITY, AND (V) BE CORRECTED OF ANY ERRORS. YOU USE MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE TUSCANY SERVICES AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TUSCANY AND ITS AFFILIATED PARTIES ON OR THROUGH THE TUSCANY SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL TUSCANY OR ITS AFFILIATED PARTIES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. THE TUSCANY SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND AGGREGATE MAXIMUM LIABILITY OF TUSCANY AND ITS AFFILIATED PARTIES FOR ANY REASON AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR TUSCANY SERVICES IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, PROVIDED THAT IF A PROVISION IN THE TERMS ENTITLES YOU TO A REFUND, NOTHING IN THESE TERMS SHALL BE CONSTRUED TO VOID YOUR ENTITLEMENT TO THE FULL AMOUNT OF THAT REFUND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF YOU HAVE NOT PAID TUSCANY ANYTHING FOR TUSCANY SERVICES DURING THAT TWELVE-MONTH PERIOD, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE TUSCANY SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS APPLY, AND LIABILITY IS LIMITED, ONLY TO THE EXTENT PERMITTED BY LAW.
8. SERVICE USAGE; TERMINATION OF USAGE
You agree to use the Tuscany Services only for lawful purposes. You will not share your login credentials or access to the Tuscany Services with anybody. You are solely responsible for your use of the Tuscany Services and for all actions that take place using your login credentials, account, or access to the Tuscany Services.
You may not access the Tuscany Services from any territory where it is illegal to do so. If you reside outside the United States and use the Tuscany Services, you do so on your own initiative and are responsible for compliance with your local laws.
These Terms may be terminated by Tuscany at any time. You also agree that Tuscany may terminate or suspend your access to the Tuscany Services, without notice, for any or no reason in its sole discretion. We may do so, for example, for any conduct that Tuscany, in its sole discretion, believes violates any applicable law, violates Tuscany Terms (such as violations of posted policies), or is otherwise harmful to the interests of another user or Tuscany and its Affiliated Parties. You may terminate these Terms at any time by sending a notice of termination to termination@ooli.us and cooperating with us to identify your account and confirm your request, provided that you first discontinue any further use of the Tuscany Services. You must send the termination notice from the email address associated with your account, or if this is not possible, you must promptly cooperate with us to identify your account. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the accountholder and that you are the actual sender of the termination notice. You are prohibited from using the Tuscany Services after sending a notice of termination, except as may be necessary to follow any instructions we may provide via email for authentication of your identity and request. If you violate this requirement and do use the Tuscany Services after sending a notice of termination (and before we block your access), your termination notice will be void as if it had never taken effect.
Tuscany reserves the right at any time to modify or discontinue, temporarily or permanently, the Tuscany Services (or any part thereof), with or without notice. Except as otherwise expressly stated in these Terms, you agree that Tuscany and its Affiliated Parties shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Tuscany Services.
9. INDEMNIFICATION
You agree to indemnify, defend and hold harmless Tuscany and its Affiliated Parties against all liability, causes of action, damages and costs, including any reasonable attorneys' fees, arising from third-party claims relating to (i) your use of the Tuscany Services, (ii) your breach of these Terms, (iii) your infringement or violation of any rights of another, or (iv) termination of your access to the Tuscany Services.
10. APPLICABLE LAW; JURISDICTION; DISPUTE RESOLUTION
These Terms shall be governed by the laws of the United States and the State of California, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
You agree that any claim or dispute relating to the Tuscany Services or these Terms that is not resolved under the arbitration requirements of these Terms must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Los Angeles, California, and no other court. You agree to submit to the personal jurisdiction of such courts and to accept service of process from them.
In no event can any claim or action by you related to the Tuscany Services be instituted more than one year after the cause of action arose.
Arbitration Agreement
(A) Informal Dispute Resolution Procedure. If there is an instance when you have a concern that needs special attention, Tuscany is committed to working with you to reach a reasonable resolution. However, we can only do this if we know about it. Therefore, for any concern you may have with the Tuscany Services, you agree to first send a written description of it to support@ooli.us so we have an opportunity to address it. You agree to work with Tuscany in good faith to resolve the concern. We believe this should lead to resolution. However, if for some reason the concern is not resolved satisfactorily within sixty (60) days after we receive your email, and all necessary information, you agree to the further dispute resolution provisions below.
(B) Mutual Arbitration Agreement. If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided for herein) subject to the terms set forth below and the National Arbitration and Mediation ("NAM") rules. If you are initiating arbitration, a copy of the demand shall also be emailed to support@ooli.us. Any demand initiating arbitration, whether filed by you or Tuscany, must include the email address you used to create an account with Tuscany.
Except as set forth below, you and Tuscany agree that by using the Tuscany Services in any way, you unconditionally consent and agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Tuscany arising out of or, relating to, or connected in any way with the Tuscany Services or 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, non-payment, or the timing of any administrative or arbitrator fees (each a "Dispute")—will be resolved exclusively by final and binding arbitration in accordance with Subsections 10(A)-(K) of these Terms (the "Arbitration Agreement"). (The portion of this Section 10 preceding Subsection 10(A) applies regardless of whether you have opted out of the Arbitration Agreement under Subsection 10(J).)
This Arbitration Agreement applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth herein. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16.
The parties understand that an arbitrator and not a judge or jury will decide the Dispute, and that rights to discovery and appeals may be limited in arbitration. The parties further understand that the costs of arbitration could exceed the costs of litigation in some instances.
You hereby acknowledge and agree that by agreeing to these Terms, which include this Arbitration Agreement, you and Tuscany are each waiving the right to a trial by a jury to the maximum extent permitted by law.
Notwithstanding the parties' decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court's jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, 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. Seeking such relief shall not waive a party's right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
(C) Class Arbitration and Collective Relief Waiver. You and Tuscany acknowledge and agree that, to the maximum extent allowed by law, except as set out otherwise in Subsection (6) below, any arbitration shall be conducted in an individual capacity only and not as a class or collective action and the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to resolve an individual party's claim; notwithstanding this acknowledgement and agreement, you agree that any arbitration involving you may proceed on a consolidated basis, but it may do so if and only if Tuscany provides its consent to consolidate in writing.
With the exception of this Subsection (C) and Subsection (F) below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, this Subsection (C) or Subsection (F) is found to be invalid, unenforceable, or illegal as applied to your claims, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Tuscany shall be entitled to arbitrate their dispute.
(D) Arbitration Rules. The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation's Commercial Dept at commercial@namadr.com. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.
(E) Arbitration Location and Procedure. For all U.S. residents, where the amount in controversy is over $25,000, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in Los Angeles, California (unless otherwise agreed by the parties). Where the amount in controversy is under $25,000, the arbitration shall take place solely by submission of written materials, unless the arbitrator determines that a hearing is necessary, and any arbitrator nationwide may be appointed. Where a hearing is necessary in such cases, the parties agree to remote participation by videoconference or teleconference.
The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Tuscany (and each of the parties' authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
(F) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM ("Mass Filing"), the parties agree to administer the Mass Filing in sequential batches of approximately 100 demands per batch (as adjusted to accommodate any arbitrator strikes as described below). To the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands). The parties further agree: (i) to designate one arbitrator for each batch; (ii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iii) that 10% of the anticipated total number of batches for the Mass Filing may proceed simultaneously as set forth in this batching provision and Arbitration Agreement, but that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior set of batches are filed, processed, and adjudicated (for example: if 2000 demands were presented as part of a Mass Filing, there would be 20 anticipated batches, 10% of which – i.e., 2 batches – may proceed simultaneously); (iv) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Tuscany and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (v) that the staged process of batched proceedings, with each batch including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved, and (vi) to make good faith efforts to resolve each batch of claims properly designated for filing, processing, and adjudication within 180 days, failing which any of the claimants whose demands have not yet begun arbitration or Tuscany may cease arbitration and file in a court of competent jurisdiction.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. Each claimant may strike the arbitrator selected by their counsel and Tuscany for the batch and where such strike is exercised, the objecting claimant's demand will be included in any simultaneously proceeding batch, or the next following batch.
You agree to cooperate in good faith with Tuscany and the arbitration provider to implement such a "batch approach" or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This "Batch Arbitration" provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Tuscany otherwise consents in writing, Tuscany does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Subsection (F). If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this Subsection (F) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Tuscany shall be entitled to arbitrate any claim that is a part of the Mass Filing.
(G) Mediation Following First Batch in a Mass Filing. The results of the first completely adjudicated batch of demands will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with Tuscany and the remaining claimants' counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Tuscany the remaining claimants and their counsel, and the mediator will have 90 days (the "Mediation Period") to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Tuscany or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Tuscany nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
(H) Arbitrator's Decision. The arbitrator's decision shall be controlled by the terms and conditions of these Terms. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of Section 8 ("Disclaimer of Warranties and Limitation of Liability") as to the types and the amounts of damages or other relief for which a party may be held liable. No individual 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. Attorneys' fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.
(I) Fees. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Tuscany will pay any filing and hearing fees in excess of the current United States District Court filing fee for the Central District of California that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys' fees) may be imposed upon you consistent with the Arbitrator's Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.
The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM's Rules where it deems appropriate (including as specified in Subsection (F)) provided that such modification does not increase the costs to you, and you further agree that 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 NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
(J) 30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to support@ooli.us with the subject line, "ARBITRATION OPT-OUT". You must send this notice from the email address associated with your account (if you have one), or if this is not possible, you must promptly cooperate with us to identify your account if you have one. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the accountholder (if you hold an account) and that you are the actual sender of the notice. Your notice must include your name and address, the email address you currently use to access your Tuscany account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. The notice must be sent within thirty (30) days of first becoming subject to this Arbitration Agreement. You become subject to this Arbitration Agreement at the same time you become subject to the rest of these Terms. Otherwise, you shall be bound to arbitrate disputes in accordance with this Arbitration Agreement. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, Tuscany also will not be bound by it.
(K) Changes. Tuscany will provide thirty (30) days' notice of any material changes to this Section 9 by posting the update on ooli.us and sending an email to the address it has on file for your Tuscany Services account, if any. Any such changes will go into effect at 11 a.m. Eastern Time 30 days after Tuscany provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If Tuscany changes this Section 9 after the date you first accepted this Section 9 (or accepted any subsequent changes to this Section 9), you agree that your failure to terminate the Terms as described in Section 1 by the time it takes effect will be deemed acceptance of those changes.
11. CLASS ACTION WAIVER
You may only resolve your disputes with Tuscany on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated, or representative action. Except as described in Section 11(C) and (F), class actions, class arbitrations, collective actions, private attorney general actions, and consolidation with other arbitrations are not allowed. By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against Tuscany on an individual basis in arbitration as set forth in this Arbitration Agreement, and not as a class, collective, coordinated, consolidated, mass, and/or representative action. You and Tuscany are each waiving the right to a trial by jury. This Arbitration Agreement will preclude you from bringing any class, collective, coordinated, consolidated, mass, and/or representative action against Tuscany, and also preclude you from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, mass, and/or representative action brought against Tuscany by someone else.
12. TECHNOLOGY AND RESOURCES
Use our Site, and other Tuscany Services made available online or that are capable of connecting to the Internet (collectively, "Online Services") may require an Internet connection (such as wireless mobile data service), which you must obtain at your cost from your wireless carrier or other Internet service provider. You are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all related usage charges. The Online Services may cause your device to send and receive data at your cost for those and other reasons over the Internet whether or not you have taken a specific action in the Tuscany Services.
You are solely responsible for obtaining any additional subscription, connectivity, or energy services or equipment necessary to access and use the Online Services, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Online Services.
We do not warrant that the Online Services will be compatible with your network provider or device. You acknowledge and agree that we may release updates to the Online Services and that you may be required to install any such update (and/or, in some cases, an update or replacement to your browser or device) in order for the Online Service to continue functioning properly. You may not export any Tuscany Services except in compliance with all applicable laws.
13. MISCELLANEOUS
Severability. If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable by an arbitrator or court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected.
Entire Agreement. These Terms, the Privacy Policy and any other policies or guidelines referenced within these Terms constitute the entire and only agreement between Tuscany and you with respect to the Tuscany Services. These Terms supersede any prior or contemporaneous agreements, representations, warranties and understandings, written or oral, regarding these Terms or the Tuscany Services.
No Waiver. The failure of Tuscany and its Affiliated Parties to insist upon strict adherence to any term of these Terms shall not constitute a waiver of such term and shall not be considered a waiver or limit that party's right thereafter to insist upon strict adherence to that term or any other term of these terms of service.
Assignment. These Terms, and any rights, licenses or obligations you receive hereunder, cannot be transferred or assigned by you, and you will not attempt to do so. Any attempted transfer or assignment in violation hereof shall be null and void. Tuscany may its sole discretion assign these Terms and any rights, licenses or obligations it receives hereunder without restriction.
14. CONTACT INFORMATION
If you have any comments, questions, or concerns regarding these Terms or the Tuscany Services, please contact us at support@ooli.us. We would like to promptly address any issue.
Tuscany Labs LLC
1111B S Governors Ave
STE 21150
Dover, DE 19904 US