OCTOPI POKER FORUM, INC.
These Terms of Service define the terms by which you may sell your services and content on our online poker forum made available at https://octopipoker.ai/ and its related domains https://forum.octopipoker.ai and https://pokerforum.ai (collectively the “Forum” or the “Website(s)”) and are an agreement between you and Octopi Poker Studios, Inc. (the “Company”) (the Company, Forum, the Platform, and our services described below (the “Services”) are collectively referenced as “we” or “us”). By using this Forum, the Platform, and the Services, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. You should not use this Forum, the Platform, and/or the Services, if you do not agree to these Terms of Service.
We may modify our Terms of Service at any time without notice in our sole discretion, and any amendments will apply upon thirty (30) days prior notice. Your continued use of the Forum, the Platform, and the Services after any amendments go into effect shall signify your acceptance of the amendments. You should return to this page from time to time in order to ensure that you are aware of any changes.
The Privacy Policy posted to our Website(s) also forms part of these Terms of Service. We may at any time modify the Privacy Policy or introduce new policies regarding the use of this Forum. Any reference to our Terms of Service includes all such policies. We may refer to either you or us as a “Party” or both of us collectively as the “Parties.”
(a) Right to Access and Use Seller Portal. Upon approval to the Forum, we will provide to Qualified Seller (i) the right to permit the number of designated authorized users made available to all sellers, if more than one (1) to access, use, display, and run the functions and features of our then-current version of the Seller Portal for commercial or business purposes and to sell products and services to prospective buyers on the Forum on Qualified Seller’s behalf in accordance with the terms and conditions further described herein and (ii) the right to make an unlimited number of copies of the Documentation about the Seller Portal, if any, for internal business purposes only. Notwithstanding the foregoing, no Qualified Seller or authorized user may share, distribute, resell, rent, lease, license, sublicense, transfer, make copies of, or create derivative works of the Seller Portal or the Documentation or otherwise permit any third party to log into, access, use, display or run the Seller Portal, or any intellectual property contained therein for any personal, commercial, or business purpose. The Seller Portal contains our trade secrets, and in order to protect those trade secrets, you agree not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivable works of the Sell Portal, in whole or in part, nor to permit any third party to do so. Any use of the Seller Portal that exceeds the scope of the rights granted herein shall constitute a material breach of these Terms of Service.
(b) Right to Offer Products and Services on the Forum. Qualified Seller shall have the right to make available products and services to prospective buyers on the Forum, and to accept and refuse prospective buyers at its sole and absolute discretion. In addition, Qualified Seller shall further have the right to define its own services, terms and conditions, prices, cancellation policies, and other terms and conditions for products and services made available on the Forum at its sole and absolute discretion.
(c) Right to Offer Same Products and Services outside the Forum. Except to the extent otherwise expressly stated herein, Qualified Seller shall have the right to make available the same products and services outside the Forum that Qualified Seller makes available to prospective buyers on the Forum; provided that, however, (a) Qualified Seller did not utilize the functions and features of the Forum in order to create or develop the product or (b) Qualified Seller did not incorporate into the product content owned by any software licensor or third-party service provider, subject to a license agreement entered into between such software licensor or third-party service provider and Company authorizing the use of the content by Qualified Seller exclusively on the Forum, hereafter (“Third-Party Licensed Content”).
(d) Right to Incorporate Third-Party Licensed Content Used Exclusively on Forum. Qualified Seller shall have the right to make available products and services on the Forum, which incorporate Third-Party Licensed Content, provided such incorporated Third-Party Licensed Content is used exclusively on the Forum and in accordance with the terms and conditions of the applicable license agreement for such Third-Party Licensed Content, as further described in the Acceptable Use Policy set forth in Section 7(a) below.
(a) Ownership of the Platform and Forum. You and Qualified Seller acknowledge and agree that no title to the intellectual property in the Platform and/or Forum shall be transferred to Qualified Seller or any authorized user under these Terms of Service. For the avoidance of doubt, you and Qualified Seller acknowledge and agree that all right, title, interest, and full ownership in the Platform and Forum shall remain the exclusive property of Company and our software licensors and third-party service providers, as appropriate.
(b) Ownership of Logos and Trademarks. You and Qualified Seller acknowledge and agree that Company owns all right, title, and interest in the logos and trademarks used by Company in conjunction with the marketing and advertising of the Forum, the Platform, and the Services, and that no right to use any logos and trademarks Is granted herein.
(c) Ownership of Content; Content License. You and Qualified Seller acknowledge and agree that Company, Company’s software licensors or third-party service providers, and other third-party service providers (“Content Providers”) may publish or otherwise make available content on the Forum and Platform (“Third Party Content”), and that such Content Providers shall retain all right, title, and interest in all such content made available on the Forum and Platform. You and Qualified Seller acknowledge and agree that, except as otherwise expressly stated herein, no right to use Third Party Content is granted herein. You and Qualified Seller acknowledge and agree that any content that you publish to the Forum and Platform shall be original content, except to the extent otherwise licensed from a software licensor or third party service provider, and that Qualified Seller will solely own all right, title, and interest in such original published content (“Qualified Seller Content”), except as otherwise expressly provided in these Terms of Service. By publishing Qualified Seller Content to the Forum, you hereby grant to Company and its software licensors and third-party service providers a worldwide, non-exclusive, transferable, assignable, sublicensable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, modify, reproduce, redistribute, relicense and otherwise use, make available, and exploit your Qualified Seller Content, in whole or in part, in any form, and in any media formats, and through any media channels (now known or hereafter developed).
(d) Ownership of Data; Data Use Rights. You and Qualified Seller acknowledge and agree that Qualified Seller shall retain ownership of all right, title, and interest in any data uploaded to the Forum or Platform (“Seller Data”). Company shall retain ownership of all right, title, and interest in any Company Data generated by the Forum, the Platform, and the Services. For the purposes of these Terms of Service, “Company Data” shall be any and all facts, information, records, or metadata generated by the Forum, the Platform, or any Services. You and Qualified Seller agree to grant Company the right to use the Seller Data for its own internal business purposes.
(e) Feedback; Idea Submissions. We welcome all feedback about the Forum and the Services. If you or Qualified Seller provide any feedback to us, you agree that all such feedback will not be subject to any obligation of confidence by us, and that we may use any such feedback to make improvements to our Forum and the Services. You and Qualified Seller expressly agree to assign all right, title, and interest in all such feedback and ideas to us for our use as we so choose in our sole and absolute discretion.
(a) Update, Upgrade, Modify, Improve Seller Portal and Platform. We have the right to make updates, upgrades, modifications, and improvements to the Seller Portal and Platform, and to make those updates, upgrades, modifications, and improvements available to all sellers, in our sole and absolute discretion.
(b) Suspend and Remove Products, Services, and Content. We have the right to suspend or remove any product or service from the Forum at any time for any reason in our sole and absolute discretion. We further have the right to block, remove, and/or permanently delete Qualified Seller Content for any reason at our absolute and sole discretion.
(c) Suspend and Terminate Sellers. We have the right to suspend or terminate the rights of any Qualified Seller at any time for any reason in our sole and absolute discretion.
(d) Refuse to Provide Services. We have the right to refuse to provide our Services to Qualified Seller at any time for any reason in our sole and absolute discretion.
(e) Designate and Replace Merchant Processor. We have the right to designate a merchant processor for the Forum and Platform, by which to process payments from buyers to sellers, which processor we may replace at any time upon prior written notice in our sole and absolute discretion.
(a) Seller Qualification. We will invite and approve sellers to make available products and services on the Platform in our sole and absolute discretion as further described herein.
(b) Hosting and Maintenance. We will host and maintain the Platform and Seller Portal in accordance with the standard service levels that we currently make available to all users of the Platform and Seller Portal.
(c) Integration of Merchant Processor. We will maintain a designated merchant processor for the Platform, and integrate its merchant processing functionality on the Platform.
(d) Technical Support Services. We will make available to you email-based technical support services during our Business Hours., which we will respond to within 24 Business Hours following our receipt. We will also make available a discord server, where you may post your technical support questions to the community and receive responses back from the community. “Business Hours” shall be defined as Monday through Friday between the hours of 9 a.m.- 9 p.m. PT, excluding recognized Company Holidays. “Company Holidays” shall be defined as the following nationally recognized U.S. holidays: Martin Luther King Jr.’s birthday, President’s Day, Memorial Day, Juneteenth, Veteran’s Day, Fourth of July, Labor Day, Thanksgiving, the day after Thanksgiving Day, Christmas Eve, Christmas Day, New Year’s Eve, and New Year’s Day.
(a) Acceptable Use Policy. You, Qualified Seller and its authorized users shall be responsible for complying at all times with the Acceptable Use Policy linked at https://octopipoker.ai/aup and incorporated herein by reference.
(b) Billing and Collection. Qualified Seller shall permit Company to exclusively manage all billing and collection activities arising from the sale of products and services purchased by buyer from Qualified Seller on the Forum, and shall cooperate at all times with the management of billing and collection activities in accordance with these Terms of Service. In addition, Qualified Seller shall refrain from withdrawing the funds collected from any Buyer until such time as the product(s) is/are delivered and/or the services are fully performed.
(c) Merchant Service Account. Qualified Seller is responsible for maintaining at all times a merchant service account in good standing with our designated merchant processor, which is currently Stripe. Qualified Seller expressly agrees to abide at all times by the designated merchant service processor’s then-current terms of services linked hereto at the domains https://stripe.com/en-gb-us/legal/ssa, https://stripe.com/en-gb-us/legal/consumer, and https://stripe.com/en-gb-us/legal/connect-account (collectively “Stripe”).
(d) Published Content. Except as expressly provided otherwise in these Terms of Service, you and Qualified Seller agree to refrain from publishing content to the Forum and Platform that is not original and is not exclusively owned by Qualified Seller.
(e) Exclusive Relationship with Buyers on Forum. You and Qualified Seller acknowledge and agree that, with respect to any buyer to whom you or Qualified Seller is introduced on the Forum for the purchase of services via the Forum shall not purchase further products or services from the Qualified Seller outside the Forum for a period of twelve (12) months following the completion of the purchase or the performance of the service. Neither you nor Qualified Seller shall circumvent in any way the terms and conditions set forth herein.
(a) Commissions. For all products and services, unless otherwise agreed by separate writing between Company and Qualified Seller, Qualified Seller shall pay to Company a commission in the amount of ten percent (10%) of all Net Sales collected from buyers on the Forum (the “Commission”). For the avoidance of doubt, “Net Sales” shall be defined as the gross amount of all payments collected from buyers on the Forum, specifically excluding merchant processing fees, and any refunds or discounts made at the point of sale to buyers, if any.
(b) Third-Party Royalties or Commissions. To the extent required by an applicable content license agreement entered between Company and a third-party software licensor or service provider for use of such third party’s content on the Forum, Qualified Seller shall pay to Company the applicable license fee or commission. Company currently makes available content from a single third-party content licensor: PokerGO. The applicable sales commission for incorporating PokerGO Content shall be five percent (5%) of the gross sales (after deducting applicable payment processing fees or credit card charges) from any and all sales of products incorporating the Poker GO Content.
(c) Fee Modifications. We have the right in our sole and absolute discretion to modify the Commission or other fees collected on the Forum, if applicable, at any time upon at least ninety (90) days prior notice, which will be posted to the Forum.
(c) Payments. Except as otherwise expressly stated in these Terms of Service, Commission payments shall be deducted immediately upon the collection of any payment from a buyer on the Forum. Qualified Seller shall solely be responsible for any taxes imposed on the products or services sold to a buyer, including but not limited to sales taxes, if any. Any taxes incurred by Company will be separately reflected on an invoice and billed directly to Qualified Seller.
(d) Refunds. All payments are nonrefundable. Notwithstanding the foregoing, Qualified Seller shall refund in full any payments for services not performed for a reason other than cancellation or failure to perform by buyer, in which case Qualified Seller shall be solely responsible for the payment of the nonrefundable Commission payment and any nonrefundable merchant processing fees incurred. Qualified Seller shall have no obligation to make a refund in any such case if Qualified Seller and buyer have mutually agreed to reschedule the unperformed services on an alternative date, or if Qualified Seller has corrected the delivery failure.
(e) Quarterly Reporting. Company shall provide to Qualified Seller a quarterly report reflecting the gross payments collected from buyers for the calendar quarter, the Net Sales collected over the same period, and the total Commission paid to Qualified Seller during this calendar quarter period.
(f) Audits. Qualified Seller shall have the right at Qualified Seller’s expense to request an annual audit of the books and records reflecting the calculation of the Commissions collected by Company from Qualified Seller, which audit request shall not be more frequent than once in any twelve (12) month period. Such audit shall be conducted by a mutually agreed upon third party. If the audit reveals an underpayment or overpayment of Commissions owed to Company, the Parties agree to promptly resolve the error as appropriate. In addition, if the audit reveals an overpayment of Commissions by Qualified Seller by more than ten percent (10%) of the amounts determined to be due for the period subject to the audit, all reasonable costs of the audit shall be borne by Company.
(a) Suspension. Upon written notice, we may temporarily suspend all Services to you for any failure to meet any Qualified Seller Obligation as set forth in Section 7 above. Upon written notice, we may also temporarily suspend all Services to you if you fail to provide a required refund as required by Section 8(d) above.
(b) Termination at Will. Either Qualified Seller or Company may terminate Qualified Seller’s rights pursuant to these Terms of Service at any time in such Party’s sole and absolute discretion and the termination will become effective immediately upon notice.
(c) Effect of Termination. Upon any termination of Qualified Seller’s rights pursuant to these Terms of Service, we shall have the right to immediately and permanently suspend the performance of all Service; the access and use rights to the Seller Portal shall cease and terminate for all authorized users; and all licenses, sublicenses, and use rights granted herein shall immediately cease and terminate, except to the extent that such license and use grants are expressly stated to be perpetual or otherwise to survive termination. Qualified Seller’s account information will be deleted in accordance with the terms of the Privacy Policy. The following terms and conditions shall survive any termination until such time as they are fully exhausted: Sections 4, 8, 9c, 10, 11 (e-h), and 12 (a-i).
(d) Force Majeure. The failure of any Party to perform any obligation pursuant to these Terms of Service by reason of “acts of God,” acts of governments, terrorism, riots, wars, accidents, deficiencies of material or transportation, pandemic or epidemic, or any other causes beyond its control shall not be deemed to be a material breach of these Terms of Service, provided that the nonperforming or delayed Party provides to the other Party written notice of the existence and nature of such reason for the nonperformance and delay, and resumes performance immediately upon the elimination of the relevant force majeure.
Either Party may disclose certain Confidential Information to each other while you are a Qualified Seller on the Forum. For the period in which you are a Qualified Seller on the Forum, and for at least five (5) years thereafter, (a) you acknowledge and agree that you shall refrain from using or exploiting any and all of our Confidential Information for any purposes or activities other than those specifically authorized in these Terms of Service, and shall hold Confidential Information in confidence and protect Confidential Information to the same extent and by the same means you use to protect the confidentiality of your own proprietary or confidential information that you do not wish to disclose, and (b) we acknowledge and agree that we shall refrain from using or exploiting any and all of your Confidential Information for any purposes or activities other than those specifically authorized in these Terms of Service, and shall hold Confidential Information in confidence and protect Confidential Information to the same extent and by the same means we use to protect the confidentiality of our own proprietary or Confidential information that we do not wish to disclose.
Neither of us shall disclose or facilitate disclosure of Confidential Information of the other except to employees and independent contractors who are authorized according to these Terms of Service and who have a “need to know such information.” Each Party shall ensure that the employees or independent contractors to whom the Confidential Information is disclosed comply with their obligations under these Terms of Service with respect to the Confidential Information. All Confidential Information made available hereunder, including copies thereof, shall be returned to the disclosing Party or shall be certified as destroyed at the request of the disclosing Party.
For the purposes of these Terms of Service, “Confidential Information” shall be defined as all of the proprietary, non-public information of either Party disclosed pursuant to or in furtherance of these Terms of Service including but not limited to all Technical Information as defined herein. Notwithstanding the foregoing, “Confidential Information” shall not include any information, that the recipient can demonstrate through its records (i) was in its knowledge or possession prior to disclosure by the discloser, (ii) was in the public domain at the time of disclosure or subsequently entered the public domain through no fault of recipient, or (iii) was disclosed to recipient by a third party with the right to make such a disclosure. “Technical Information” shall be defined as all proprietary or non-public information, know-how, trade secrets, data, materials, inventions, source code, or discoveries owned by Company that are necessary or useful to the Forum or the Platform and are in the possession of Company as of the date Seller is approved to be a “Qualified Seller.”
(a) Qualified Seller Warranty. Qualified Seller warrants and represents that (i) in entering into these Terms of Service, Qualified Seller has not relied on any sales representations other than those expressly set forth in these Terms of Service; (ii) Qualified Seller is authorized to enter into this agreement with Company and has the power and authority to bind itself to the obligations set forth herein; (iii) Qualified Seller has met all seller obligations and other requirements set forth herein; and (iv) if Qualified Seller is a business, Qualified Seller is validly organized or otherwise existing and in good standing with the laws of the state in which Qualified Seller is organized or existing and in all other applicable states where Qualified Seller does business. In addition, Qualified Seller warrants and represents that the poker-related services made available for sale by Qualified Seller on this Forum will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards, and that any content uploaded by or on behalf of Qualified Seller to the Forum will be original (except as otherwise expressly permitted pursuant to these Terms of Service) and will not infringe the intellectual property of any third party.
(b) General Warranty. You warrant and represent that (i) in entering into these Terms of Service, you have not relied on any sales representations other than those expressly set forth in these Terms of Service; (ii) you are authorized to enter into this agreement with Company and have the power and authority to bind Qualified Seller to the obligations set forth herein; and (iii) you have met all other obligations and requirements set forth herein.
(c) Disclaimer of Other Warranties. THE FORUM, THE PLATFORM, AND THE COMPANY SERVICES ARE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE FORUM, THE PLATFORM, AND THE COMPANY SERVICES ARE ENTIRELY AT YOUR OWN RISK. YOU SOLELY ASSUME THE RISKS OF SELLING YOUR OWN PRODUCTS AND SERVICES, BEING INTRODUCED TO UNDESIRABLE BUYERS THROUGH THE FORUM AND THE PLATFORM, AND FOR INCURRING CHARGEBACKS, LEGAL DISPUTES, OR OTHER LOSSES AS A RESULT OF INTERACTING WITH A PARTICULAR BUYER OR MULTIPLE BUYERS WITH WHOM YOU INTERACT ON THE FORUM. WE DO NOT SCREEN INDIVIDUAL BUYERS AND HAVE NO KNOWLEDGE OF THEIR SUITABILITY AS CUSTOMERS OR THEIR BACKGROUNDS AND REPUTATIONS. YOU ARE SOLELY RESPONSIBLE FOR ANY FINANCIAL LOSSES OR OTHER LIABILITIES YOU INCUR AS A RESULT OF USE OF THIS FORUM OR PLATFORM. WE DISCLAIM ANY AND ALL RESPONSIBILITY FOR LIABILITIES OR LOSSES SUFFERED AS A RESULT OF RELIANCE ON OR USE OF THE FORUM OR PLATFORM. WE FURTHER DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SKILLS, CHARACTER, PROFESSIONALISM, SAFETY, CRIMINAL, EMPLOYMENT, BACKGROUND, POKER PLAYING SKILLS OR QUALIFICATIONS, AND/OR OTHER PERSONAL HISTORY REGARDING BUYERS OR THIRD PARTIES WITH WHOM YOU MAY COME IN CONTACT AS A RESULT OF THIS PLATFORM. WE ALSO DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR USE OF THE FORUM OR PLATFORM WITH HARDWARE DEVICES THAT DO NOT MEET THE HARDWARE SPECIFICATIONS ESTABLISHED BY COMPANY. WE EXPRESSLY DISCLAIM ANY WARRANTY THAT USE OF THE FORUM AND PLATFORM WILL ALWAYS BE COMPLETELY ACCURATE, RELIABLE, OR ERROR-FREE; THAT ACCESS TO THE FORUM, PLATFORM, AND SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, VIRUS-FREE, FREE OF DEFECTS, OR FREE OF TECHNICAL PROBLEMS; THAT ALL ERRORS, BUGS, OR DEFECTS CAN AND WILL BE CORRECTED; THAT CONTENT UPLOADED OR DATA COLLECTED OR GENERATED BY THE FORUM OR PLATFORM WILL NEVER BE LOST; THAT COMMUNICATIONS ON THE FORUM WILL BE ACCURATE, RELIABLE, INOFFENSIVE, UNOBJECTIONABLE, OR OTHERWISE APPROPRIATE; OR THAT COMPANY WILL MEET ALL OF YOUR NEEDS. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE FORUM, PLATFORM AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
YOU AND QUALIFIED SELLER ACKNOWLEDGE AND AGREE THAT THE FORUM MAY EXPOSE VIEWERS TO CONTENT FROM A VARIETY OF SOURCES THAT DOES NOT NECESSARILY REFLECT THE VIEWS OF COMPANY OR COMPANY’S SOFTWARE LICENSORS AND THIRD-PARTY SERVICE PROVIDERS. ACCORDINGLY, YOU AND QUALIFIED SELLER EXPRESSLY AGREE THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, RELIABILITY, OR INTELLECTUAL PROPERTY RIGHTS OF SUCH CONTENT. ALSO, YOU ACKNOWLEDGE AND AGREE THAT SUCH CONTENT MAY BE INACCCURATE, OFFENSIVE, AND OBJECTIONABLE, AND THAT COMPANY IS NOT RESPONSIBLE AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE PUBLISHED CONTENT ON THE FORUM AND PLATFORM, AS WELL AS ANY AND ALL RESPONSBILITY FOR MONITORING THE PUBLISHED CONTENT ON THE FORUM AND PLATFORM.
PARTICIPATING IN ANY ONLINE FORUM OR PLATFORM WHERE YOU INTERACT WITH INDIVIDUALS THAT YOU DO NOT KNOW ALWAYS INVOLVES SOME RISK OF PHYSICAL INJURY OR DEATH. WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY FOR THE CONDUCT AND BEHAVIOR OF ANY THIRD PARTY YOU INTERACT WITH AND FOR ANY RISK OF BODILY INJURY OR DEATH ARISING IN CONNECTION WITH OUR PLATFORM FUNCTIONALITIES AND FEATURES.
(d) Consequential Damages. NEITHER COMPANY NOR ANY OF OUR SOFTWARE LICENSORS OR THIRD-PARTY SERVICE PROVIDERS SHALL IN ANY EVENT BE LIABLE TO YOU, QUALIFIED SELLER, OR ANY AUTHORIZED USER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PUBLISHED CONTENT, LOSS OF DATA, WINS, PROFITS, OR OTHER FINANCIAL LOSSES; LOSS OF POKER GAMES, TOURNAMENTS OR OTHER BUSINESS OPPORTUNITIES; THE QUALITY OR NATURE OF PUBLISHED CONTENT OR COMMUNICATIONS; COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE, PERFORMANCE, OR INTERRUPTION OF THE FORUM OR PLATFORM, THE HARDWARE DEVICES, OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, THIRD PARTY CLAIMS, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW.
(e) Limitation of Liability. Our total, cumulative liability to you, Qualified Seller, and/or any and all authorized user(s) from all causes of action and under all theories of liability in the aggregate shall be limited to the total amount of all fees paid by Qualified Seller to Company in the twelve (12) month period immediately preceding the claim pursuant to these Terms of Service. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy thereunder.
(f) Class Action Waiver. BY ENTERING INTO THESE TERMS OF SERVICE, YOU, QUALIFIED SELLER, AND AUTHORIZED USER(S) EXPRESSLY ACKNOWLEDGE AND AGREE TO HEREBY WAIVE ANY AND ALL RIGHTS TO PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION AGAINST COMPANY AND OUR SOFTWARE LICENSORS AND THIRD PARTY SERVICE PROVIDERS IN A COURT OR ARBITRATION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY. YOU, QUALIFIED SELLED, AND AUTHORIZED USER(S) FURTHER AGREE THAT ANY OF YOU MAY BRING DISPUTES AGAINST COMPANY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. TO THE EXTENT YOU ARE PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST COMPANY, YOU AGREE THAT (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT) AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
(g) Release of Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU, QUALIFIED SELLER, AND AUTHORIZED USER(S) HEREBY RELEASE AND WAIVE ALL CLAIMS AGAINST COMPANY AND OUR OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES, AGENTS, SOFTWARE LICENSORS, AND THIRD PARTY SERVICE PROVIDERS FROM ANY AND ALL LIABILITY FOR CLAIMS, DAMAGES (ACTUAL AND CONSEQUENTIAL), COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS FEES) OF EVERY KIND AND NATURE ARISING FROM OR IN ANY WAY RELATED TO COMPANY, THE FORUM, PLATFORM, OR THE SERVICES. YOU UNDERSTAND THAT ANY MATTER COVERED BY THIS RELEASE MAY BE FOUND TO BE OTHER THAN NOW BELIEVED TO BE TRUE AND ACCEPT AND ASSUME THE RISK OF SUCH POSSIBLE DIFFERENCES IN FACT.
(h) Indemnification. YOU, QUALIFIED SELLER, AND AUTHORIZED USER(S) HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY AND OUR OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES, AGENTS, SOFTWARE LICENSORS, AND THIRD-PARTY SERVICE PROVIDERS (AND THEIR COLLECTIVE SUBSIDIARIES, AFFILIATES, OFFICERS, FACULTY, STUDENTS, FELLOWS, GOVERNING BOARD MEMBERS, AGENTS AND EMPLOYEES, TO THE EXTENT APPLICABLE) FROM ANY AND ALL LIABILITY FOR CLAIMS, DAMAGES (ACTUAL AND CONSEQUENTIAL), AND COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS FEES) OF EVERY KIND AND NATURE ARISING FROM OR IN ANY WAY RELATED TO THE USE OF THE FORUM, THE PLATFORM, AND THE SERVICES, INCLUDING BUT NOT LIMITED TO (A) ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (B) ANY VIOLATION OF OUR ACCEPTABLE USE POLICY; (C) ANY VIOLATION OF A STATE, FEDERAL, OR INTERNATIONAL REGULATION OR OTHER APPLICABLE LAW; (D) ANY LEGAL DISPUTE OR OTHER DAMAGE, LOSS OR INJURY ARISING FROM AN INTRODUCTION TO A BUYER MADE VIA THIS FORUM; (E) ANY MISAPPROPRIATION OF COMPANY OR ANY THIRD PARTY’S TRADE SECRETS; AND (F) ANY CLAIMS BY YOU, QUALIFIED SELLER, OR ANY THIRD PARTY WHICH ARISE AS A RESULT OF YOUR ACCESS AND USE OF THIS FORUM.
(a) Entire Understanding. These Terms of Service, along with the any other web pages linked hereto, contains the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral. There are no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and no rights or duties on the part of either Party are to be implied or inferred beyond those expressly provided for.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, USA, without regard to conflicts of law principles.
(c) Dispute Resolution. All disputes or controversies arising out of or in connection with these Terms of Service, their interpretation, performance, or termination, shall be submitted to binding arbitration in Clark County, Nevada, USA under the applicable consumer or commercial Rules of the American Arbitration Association, as appropriate. The proceeding shall be conducted in the English language with a single arbitrator and the costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the Parties. Each Party shall bear its own costs and attorneys’ and witnesses’ fees. The arbitration award shall be final, and each Party shall comply in good faith and submit itself to the jurisdiction of the appropriate courts for the sole purpose of the entry of such arbitrator’s award to render effective such arbitration decision. Notwithstanding the foregoing, judgment on the award by the arbitrator may be entered in any court having jurisdiction. If judicial enforcement or review of the arbitrator’s decision is sought, the prevailing Party shall be entitled to costs and reasonable attorneys’ fees.
(d) Severance. If any provision of these Terms of Service is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in these Terms of Service and the subscription entered into hereunder, if any invalid or unenforceable provision affects the consideration of either Party.
(e) Assignment. These Terms of Service shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign the terms or conditions set forth herein to a third party except that each Party may transfer the terms of the subscription to a successor in the event of a merger or a purchase of all or substantially all of such Party’s assets; provided, however, that such transfer may only occur if the assignee in each case agrees to be bound by each of the terms of these Terms of Service.
(f) Notices. All notices provided in connection with these Terms of Service will be in writing, and will be delivered by (i) email, or (ii) certified or registered mail, postage prepaid and return receipt requested at the designated address listed in the Qualified Seller application, or (iii) courier and will be deemed effective upon receipt by the authorized representative and the address set forth above, or (iv) at such other addresses as the Parties may designate by written notice to each other. If sent to the Company, notices should be delivered by email to legal@octopipoker.ai
(g) Waiver. No waiver by either Party of any breach of these Terms of Service, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege.
(h) Third Parties. We do not screen or run any criminal, employment, or other background checks on individuals buying products and services through this Forum and/or Platform. Your interactions with any third party through this Forum and/or Platform are solely between you and such third party. You are solely responsible for exercising good business judgment, common sense, and reasonable caution in any dealing with any third party with whom you are connected through this Forum and/or Platform. You agree that we will not be responsible or liable for any loss, damage, bodily injury, or other any liabilities incurred as a result of your interactions with such third parties. You assume the sole and absolute risk of loss, injury, damage, and liability of your interaction with any third party linked to this Forum and/or Platform.
(i) Conflicts. In the event of any conflict between the terms and conditions of these Terms of Service and any linked web page incorporated herein by reference, the terms set forth in these Terms of Service shall control.
Effective Date: February 13, 2024
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