Welcome to the website www.opencompute.org (the “Site”). The Site is provided by Open Compute Project Foundation (which may be referred to in these Terms of Service as “OCP,” “we,” “us” or “our”). BY CLICKING ON THE “I ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, AND THESE TERMS OF SERVICE WILL APPLY TO YOU AND WILL CONSTITUTE A BINDING LEGAL CONTRACT BETWEEN YOU AND OCP. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITION OF THESE TERMS OF SERVICE, CLICK THE “I DO NOT ACCEPT” BUTTON.
Notice Regarding Dispute Resolution: These Terms of Service include provisions that govern how claims you and we may have against each other are resolved (see Section 11 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 11.5. Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Updates to these Terms of Service
Because of changes in technology and the growth and development of our business, or for other business reasons, we may need to modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service through posting the amended terms on the Site and by emailing you an alert via email address you provided to us as part of your Registration Data (defined below) at least thirty (30) days before the effective date of the changes. If you do not agree with the updated Terms of Service, you should discontinue your use of the Site. If you continue using the Site after the updated Terms of Service take effect, you will be bound by the updated Terms of Service.
3. Affirmative Representations Regarding Your Use of the Site
When you use the Site, you represent that: (a) you are of sufficient legal age or otherwise have legal capacity to legally agreed to the terms and conditions included in these Terms of Service; (b) you will comply with the rules for online conduct and provisions of these Terms of Service, and (c) you will use the Site in compliance with applicable law.
4. User Accounts and Registration
You can visit and browse the Site without becoming a registered user of the Site, but you will not be able to create a Member Profile, sign up for OCP newsletter or make online payments unless you register through the Site. If you choose to become a registered user of the Site, you agree: (a) to provide true, accurate, current and complete information about yourself as prompted by the Site’s registration process (the “Registration Data”); (b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (c) not to use the name of another person with the intent to impersonate that person or in a way that otherwise causes confusion as to the origin of your account. If you register through the Site, you will be required to create a user I.D. and password that will be associated with your user account. You may not: (i) select or use as a user I.D. a name of another person with the intent to impersonate that person; (ii) use as a user I.D. a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a user I.D. a name that is otherwise offensive, vulgar or obscene. We reserve the right to refuse registration of, or to cancel, a user I.D., in our sole discretion. You shall be responsible for maintaining the confidentiality of your user I.D. and password. You may also register with the Site by accessing it through your Facebook or Openid account or through other means that OCP may make available to you from time to time.
5. Online Payments
You may also elect to make individual donations to OCP through the Site, in any amount you desire. Each applicable donation will be subject to the terms of Section 5.1 above. If you choose to make a donation, you understand that your donation cannot be cancelled or returned once it has been completed. You acknowledge that your donation is non-refundable by OCP and is made in your sole discretion and at your sole risk based on your sole determination and evaluation. You are solely responsible for determining the tax deductibility of any donation.
6. Prohibited Activities
You agree that in connection with your use of the Site, you will not:
(a) use the Site for any unauthorized purpose including collecting usernames or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Site without our express written consent;
(b) transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site, including without limitation, hacking into the Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
(c) impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
(d) decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Site, or any portion thereof; or
(e) circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Materials (as defined in Section 7 below) or enforce limitations on use of the Site or the Materials on the Site.
7. OCP’s Intellectual Property Rights
All of the content on the Site (“Materials”) and the trademarks, service marks, and logos contained on the Site, are owned by or licensed to OCP and are subject to copyright and other intellectual property rights protection under United States and foreign laws and international conventions. The Site and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights not expressly granted in and to the Site and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials. You further agree not to access the Site by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
8. User-Provided Content
OCP may allow users to submit and share comments, feedback, submissions, suggestions, questions, reviews, and other content through the Site (“Content”). By submitting Content, you warrant that (a) you are the sole author and owner of the Content; (b) you are at least 18 years old or if you are under the age of 18, you are at least 13 years old and your submission has been made under the supervision of a parent of legal guardian who agrees to be bound by these Terms of Service; and (c) use of any Content you supply will not violate these Terms of Service and will not cause injury to any person or entity. If you submit any Content to the Site, you automatically grant, or warrant that the owner of such content has expressly granted, OCP a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content material in any media or medium, or any form, format, or forum now known or hereafter developed. OCP may sublicense its rights through multiple tiers of sublicenses. You should not submit any Content to us that you do not wish to license to us. You grant OCP the right to use the name that you submit in connection with any Content.
9. Management of the Site; User Misconduct
We reserve the right, but do not undertake the obligation to: (a) monitor or review the Site for violations of these Terms of Service and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (c) refuse, restrict access to or the availability of, or remove or disable (to the extent technologically feasible) any Content or any portion thereof that may violate these Terms of Service, the law or any of our policies without prior notice to you; (d) manage the Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Site; (e) screen our users, or attempt to verify the statements of our users; and/or (f) monitor disputes between you and other users or to terminate or block you and other users for violations of these Terms of Service. WITHOUT LIMITING ANY OTHER PROVISION OF these terms of service, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THe SITE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION, FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN these terms of service, OR OF ANY APPLICABLE LAW OR REGULATION.
10. Third Party Sites
11. Legal Disputes and Arbitration Agreement
Please Read The Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
11.1 Initial Dispute Resolution
We are available by email at Admin@opencompute.org to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. OCP will work in good faith to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration.
11.2 Agreement to Binding Arbitration
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11.1 above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain circumstances.
The parties understand that, absent this mandatory provision, they would have theright to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
11.3 Class Action and Class Arbitration Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 11.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.4 Exception – Small Claims Court Claims
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
11.5 30-Day Right to Opt-Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 11.2, 11.3 and 11.4 by sending written notice of your decision to opt-out to the following address: PO Box 82287, Austin, TX 78708, by email to Admin@opencompute.org or by fax to 1-888-559-7545. The notice must be sent within thirty (30) days of commencing use of the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, OCP also will not be bound by them.
11.6 Exclusive Venue for Litigation
To the extent that the arbitration provisions set forth in Section 11.2 do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Santa Clara County, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in the Santa Clara County, California for any litigation other than small claims court actions.
11.7 Applicable Law
You agree that federal laws and the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and OCP.
12. Warranty Disclaimer; Limitation on Liability
12.1 Disclaimer of Warranties
(a) the Site and ALL MATERIALS OR ITEMS PROVIDED by OCP THROUGH the SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THe SITE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY content or MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY THe SITE, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE content or MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THe SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THe SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN these Terms of Service. YOU AGREE THAT YOUR USE OF THe SITE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THe SITE AND YOUR USE of the Site.
(b) WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THe SITE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SITE, content, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THe SITE OR LINKED TO BY THe SITE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF the Site, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THe SITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THe SITE BY ANY THIRD PARTY, OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THe SITE.
12.2 Limited Liability
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THe SITE, content, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN these Terms of Service, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH these Terms of Service, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
12.3 Exceptions to Disclaimers and Liability Limitations
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS in Sections 12.1 and 12.2 MAY NOT APPLY TO YOU.
You agree to indemnify and hold OCP, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site or Materials in violation of these Terms of Service or applicable law, or any breach of your representations and warranties set forth above.
14. Independent Contractors
Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between OCP and any user.
15. No Third Party Beneficiaries
These Terms of Service are between you and OCP. There are no third-party beneficiaries to these Terms of Service.
16. Section Titles
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
We may assign our rights under these Terms of Service without your approval.
20. No Modifications by Our Employees
If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
21. Contact Information
If you have any questions about these Terms of Service or your account, you may contact us by email at Admin@opencompute.org or by postal mail at PO Box 82287, Austin, TX 78708.