Effective date: May 1, 2021
Welcome to OtterTune. Please read on to learn the rules and restrictions that
govern your use of our website (the “Website”). If you have any questions,
comments, or concerns regarding these terms or the website, please contact us
Email: [email protected]
Address: Pittsburgh, PA
OTTERTUNE, INC. (“OtterTune,” “we” and “us”). Your use of the
Website in any way means that you agree to all of these Terms, and these Terms
will remain in effect while you use the Website. These Terms include the
provisions in this document as well as those in the
What about my privacy?
Are there restrictions in how I can use the Website?
You represent, warrant, and agree that you will not provide or contribute
anything, including any Content (as that term is defined below), to the
Website, or otherwise use or interact with the Website, in a manner that:
infringes or violates the intellectual property rights or any other rights
of anyone else (including OtterTune);
violates any law or regulation, including, without limitation, any
applicable export control laws, privacy laws or any other purpose not
reasonably intended by OtterTune;
is dangerous, harmful, fraudulent, deceptive, threatening, harassing,
defamatory, obscene, or otherwise objectionable;
attempts, in any manner, to obtain the password, account, or other security
information from any other user;
violates the security of any computer network, or cracks any passwords or
security encryption codes;
runs Maillist, Listserv, any form of auto-responder or “spam” on the
Website, or any processes that run or are activated while you are not logged
into the Website, or that otherwise interfere with the proper working of the
Website (including by placing an unreasonable load on the Website
“crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating
to the Website or Content (through use of manual or automated means);
- copies or stores any significant portion of the Content; or
decompiles, reverse engineers, or otherwise attempts to obtain the source
code or underlying ideas or information of or relating to the Website.
A violation of any of the foregoing is grounds for termination of your right
to use or access the Website.
What are my rights in the Website?
The materials displayed or performed or available on or through the Website,
including, but not limited to, text, graphics, data, articles, photos, images,
illustrations and so forth (all of the foregoing, the “Content”) are protected
by copyright and/or other intellectual property laws. You promise to abide by
all copyright notices, trademark rules, information, and restrictions
contained in any Content you access through the Website, and you won’t use,
copy, reproduce, modify, translate, publish, broadcast, transmit, distribute,
perform, upload, display, license, sell, commercialize or otherwise exploit
for any purpose any Content not owned by you, (i) without the prior consent of
the owner of that Content or (ii) in a way that violates someone else’s
(including OtterTune’s) rights.
Subject to these Terms, we grant each user of the Website a worldwide,
non-exclusive, non-sublicensable and non-transferable license to use (i.e., to
download and display locally) Content solely for purposes of using the
Website. Use, reproduction, modification, distribution or storage of any
Content for any purpose other than using the Website is expressly prohibited
without prior written permission from us. You understand that OtterTune owns
the Website. You won’t modify, publish, transmit, participate in the transfer
or sale of, reproduce (except as expressly provided in this Section), create
derivative works based on, or otherwise exploit any of the Website. The
Website may allow you to copy or download certain Content, but please remember
that even where these functionalities exist, all the restrictions in this
section still apply.
Who is responsible for what I see and do on the Website?
Any information or Content publicly posted or privately transmitted through
the Website is the sole responsibility of the person from whom such Content
originated, and you access all such information and Content at your own risk,
and we aren’t liable for any errors or omissions in that information or
Content or for any damages or loss you might suffer in connection with it. We
cannot control and have no duty to take any action regarding how you may
interpret and use the Content or what actions you may take as a result of
having been exposed to the Content, and you hereby release us from all
liability for you having acquired or not acquired Content through the Website.
We can’t guarantee the identity of any users with whom you interact in using
the Website and are not responsible for which users gain access to the
You are responsible for all Content you contribute, in any manner, to the
Website, and you represent and warrant you have all rights necessary to do so,
in the manner in which you contribute it.
The Website may contain links or connections to third-party websites or
services that are not owned or controlled by OtterTune. When you access
third-party websites or use third-party services, you accept that there are
risks in doing so, and that OtterTune is not responsible for such risks.
OtterTune has no control over, and assumes no responsibility for, the content,
accuracy, privacy policies, or practices of or opinions expressed in any
third-party websites or by any third party that you interact with through the
Website. In addition, OtterTune will not and cannot monitor, verify, censor or
edit the content of any third-party site or service. We encourage you to be
aware when you leave the Website and to read the terms and conditions and
utilize. By using the Website, you release and hold us harmless from any and
all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through
the Website, including payment and delivery of goods or services, and any
other terms, conditions, warranties or representations associated with such
dealings, are solely between you and such organizations and/or individuals.
You should make whatever investigation you feel necessary or appropriate
before proceeding with any online or offline transaction with any of these
third parties. You agree that OtterTune shall not be responsible or liable for
any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this Website, or between users
and any third party, you agree that OtterTune is under no obligation to become
involved. In the event that you have a dispute with one or more other users,
you release OtterTune, its directors, officers, employees, agents, and
successors from claims, demands, and damages of every kind or nature, known or
unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or
in any way related to such disputes and/or our Website. You shall and hereby
do waive California Civil Code Section 1542 or any similar law of any
jurisdiction, which says in substance: “A general release does not extend to
claims that the creditor or releasing party does not know or suspect to exist
in his or her favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement with the
debtor or released party.”
What else do I need to know?
OtterTune and its licensors, suppliers, partners, parent, subsidiaries or
affiliated entities, and each of their respective officers, directors,
members, employees, consultants, contract employees, representatives and
agents, and each of their respective successors and assigns (OtterTune and all
such parties together, the “OtterTune Parties”) make no representations or
warranties concerning the Website, including without limitation regarding any
Content contained in or accessed through the Website, and the OtterTune
Parties will not be responsible or liable for the accuracy, copyright
compliance, legality, or decency of material contained in or accessed through
the Website or any claims, actions, suits procedures, costs, expenses, damages
or liabilities arising out of use of, or in any way related to your
participation in, the Website. The OtterTune Parties make no representations
or warranties regarding suggestions or recommendations of services or products
offered or purchased through or in connection with the Website. THE WEBSITE
AND CONTENT ARE PROVIDED BY OTTERTUNE (AND ITS LICENSORS AND SUPPLIERS) ON AN
“AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE WEBSITE WILL BE
UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG
AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND
UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT
LIABILITY, OR OTHERWISE) SHALL ANY OF THE OTTERTUNE PARTIES BE LIABLE TO YOU
OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY
OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF
ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS
MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the OtterTune Parties harmless from and
against any and all claims, liabilities, damages (actual and consequential),
losses and expenses (including attorneys’ fees) arising from or in any way
related to any claims relating to (a) your use of the Website, and (b) your
violation of these Terms. In the event of such a claim, suit, or action
(“Claim”), we will attempt to provide notice of the Claim to the contact
information we have for your account (provided that failure to deliver such
notice shall not eliminate or reduce your indemnification obligations
Assignment. You may not assign, delegate or transfer these Terms or your rights or
obligations hereunder, in any way (by operation of law or otherwise) without
OtterTune’s prior written consent. We may transfer, assign, or delegate these
Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal
Arbitration Act, applicable federal law, and the laws of the State of
Delaware, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires
you to arbitrate certain disputes and claims with OtterTune and limits the
manner in which you can seek relief from OtterTune. Both you and OtterTune
acknowledge and agree that for the purposes of any dispute arising out of or
relating to the subject matter of these Terms, OtterTune’s officers,
directors, employees and independent contractors (“Personnel”) are third-party
beneficiaries of these Terms, and that upon your acceptance of these Terms,
Personnel will have the right (and will be deemed to have accepted the right)
to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The
parties shall use their best efforts to settle any dispute, claim, question,
or disagreement arising out of or relating to the subject matter of these
Terms directly through good-faith negotiations, which shall be a precondition
to either party initiating arbitration. If such negotiations do not resolve
the dispute, it shall be finally settled by binding arbitration in Allegheny
County, Pennsylvania. The arbitration will proceed in the English language, in
accordance with the JAMS Streamlined Arbitration Rules and Procedures (the
“Rules”) then in effect, by one commercial arbitrator with substantial
experience in resolving intellectual property and commercial contract
disputes. The arbitrator shall be selected from the appropriate list of JAMS
arbitrators in accordance with such Rules. Judgment upon the award rendered by
such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all
arbitration fees. OtterTune will pay all arbitration fees for claims less than
seventy-five thousand ($75,000) dollars. OtterTune will not seek its
attorneys’ fees and costs in arbitration unless the arbitrator determines that
your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or OtterTune may
assert claims, if they qualify, in small claims court in Allegheny County,
Pennsylvania or any United States county where you live or work. Furthermore,
notwithstanding the foregoing obligation to arbitrate disputes, each party
shall have the right to pursue injunctive or other equitable relief at any
time, from any court of competent jurisdiction, to prevent the actual or
threatened infringement, misappropriation or violation of a party’s
copyrights, trademarks, trade secrets, patents or other intellectual property
(d) Waiver of Jury Trial. YOU AND OTTERTUNE WAIVE ANY CONSTITUTIONAL
AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR
JURY. You and OtterTune are instead choosing to have claims and disputes
resolved by arbitration. Arbitration procedures are typically more limited,
more efficient, and less costly than rules applicable in court and are subject
to very limited review by a court. In any litigation between you and OtterTune
over whether to vacate or enforce an arbitration award, YOU AND OTTERTUNE
WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be
resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES
WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED
ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE
CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED
WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or
consolidated actions is deemed invalid or unenforceable, neither you nor
OtterTune is entitled to arbitration; instead all claims and disputes will be
resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this
Section by sending written notice of your decision to opt out to the following
address: Pittsburgh, PA postmarked within
thirty (30) days of first accepting these Terms. You must include (i) your
name and residence address, (ii) the email address and/or telephone number
associated with your account, and (iii) a clear statement that you want to opt
out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in
any circumstances where the foregoing arbitration agreement permits either you
or OtterTune to litigate any dispute arising out of or relating to the subject
matter of these Terms in court, then the foregoing arbitration agreement will
not apply to either party, and both you and OtterTune agree that any judicial
proceeding (other than small claims actions) will be brought in the state or
federal courts located in, respectively, Delaware, or the federal district in
which that county falls.
(h) Severability. If the prohibition against class actions and other
claims brought on behalf of third parties contained above is found to be
unenforceable, then all of the preceding language in this Arbitration
Agreement section will be null and void. This arbitration agreement will
survive the termination of your relationship with OtterTune.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all
taxes, duties, and other governmental assessments associated with your
activity in connection with the Website, provided that the OtterTune may, in
its sole discretion, do any of the foregoing on your behalf or for itself as
it sees fit. The failure of either you or us to exercise, in any way, any
right herein shall not be deemed a waiver of any further rights hereunder. If
any provision of these Terms are found to be unenforceable or invalid, that
provision will be limited or eliminated, to the minimum extent necessary, so
that these Terms shall otherwise remain in full force and effect and
enforceable. You and OtterTune agree that these Terms are the complete and
exclusive statement of the mutual understanding between you and OtterTune, and
that these Terms supersede and cancel all previous written and oral
agreements, communications and other understandings relating to the subject
matter of these Terms. You hereby acknowledge and agree that you are not an
employee, agent, partner, or joint venture of OtterTune, and you do not have
any authority of any kind to bind OtterTune in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration
agreement, you and OtterTune agree there are no third-party beneficiaries
intended under these Terms.