OpenCounseling Terms of Use

1. ACCEPTANCE OF TERMS

OpenCounseling provides a collection of online resources, including classified ads, forums, catalogs, and various email services available on or through www.opencounseling.com (“the Service”) subject to the following Terms of Use (“Terms of Use” or “TOU”).  These Terms of Use are entered into by and between you and OpenCounseling (“Company”, “we”, or “us”).  The following terms and conditions govern your access to and use of www.opencounseling.com, including any content, functionality, and services offered on or through www.opencounseling.com (the “Website”).

THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICES.  BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), UNLESS SEPARATE TERMS ARE OFFERED BY YOU IN WRITING AND ACCEPTED IN WRITING BY US; AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT).  BY USING THE SERVICE IN ANY WAY, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY OUR PRIVACY POLICIES (THE “PRIVACY POLICIES”), FOUND AT www.opencounseling.com/privacy-policy/, INCORPORATED HEREIN BY REFERENCE. IN ADDITION, WHEN USING PARTICULAR OPENCOUNSELING SERVICES, YOU AGREE TO ABIDE BY ANY APPLICABLE POSTED GUIDELINES FOR ALL OPENCOUNSELING SERVICES, WHICH MAY CHANGE FROM TIME TO TIME. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD.  IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.

BY USING THE SERVICE IN ANY WAY, YOU FURTHER ACCEPT THAT SERVICES OFFERED ON OR THROUGH WWW.OPENCOUNSELING.COM, INCLUDING, BUT NOT LIMITED TO, COMMUNICATIONS FROM THE WEBSITE, ARE NOT DESIGNED WITH SECURITY AND ACCESS MANAGEMENT FOR PROCESSING “PROTECTED HEALTH INFORMATION” AS DEFINED UNDER THE HEALTH AND INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996. BY VOLUNTARILY PROVIDING ANY INFORMATION THROUGH THE SERVICE YOU FULLY CONSENT TO DISCLOSURE OF SUCH INFORMATION TO OTHER USERS TO WHOM YOU PROVIDE SUCH INFORMATION. IF YOU DO NOT ACCEPT THE FOREGOING, DO NOT ACCESS OR USE THE SERVICES.

2.    ELIGIBILITY FOR USE

This Website is offered and available to users who are 18 years of age or older.  By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

3.    MODIFICATIONS TO THIS AGREEMENT

We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such modifications shall become effective seven (7) days after the posting thereof, and apply to all access to and use of the Website thereafter.  In the event we make material changes to these terms that impact your rights we will also notify you via email at the address we have on file.  Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page each time you access this Website so you are aware of any changes, as they are binding on you.

4.    SERVICES

OpenCounseling offers a variety of online programs (the “Programs”) as a convenience to its participating professionals (the “Professionals”) and persons interested in engaging Professionals to perform professional counseling services (the “Consumers”).

To Consumers: As a condition to your use of the Service and specific Programs, and as material inducement on the part of OpenCounseling and its affiliates to offer the Service and the Programs to you, you expressly acknowledge and agree that use of the Service and Programs are at your sole risk.  OpenCounseling and its affiliates do not provide, nor will they provide, any service to you other than as set forth in this TOU. Neither OpenCounseling nor its affiliates will be a party to any contract or agreement which you may enter into with a Professional. If you engage the services of any Professional, all arrangements and contractual agreements in such regard are solely between you and the concerned Professional.

To Professionals: As a condition to your use of the Service and specific Programs, and as material inducement on the part of OpenCounseling and its affiliates to offer the Service and the Programs to you, you expressly acknowledge and agree that use of the Service and Programs are at your sole risk. OpenCounseling and its affiliates do not provide, nor will they provide, any service to you other than as set forth in this TOU. Neither OpenCounseling nor its affiliates will be a party to any agreement which you may enter into with a Consumer.=

Questions about our services Programs may be directed through our customer service form: www.opencounseling.com/contact/.

5.    INFORMATION PROVIDED ON THE WEBSITE

You agree and acknowledge that any content posted to the Website is for informational purposes only and should not be construed as medical advice or a professional medical opinion on any specific facts or circumstances. The information on this Website is not guaranteed to be accurate, up-to-date, correct or complete, and you should not rely on it to make any medical or health-related decisions. We expressly disclaim all liability with respect to actions taken or not taken based on any content on this Website. The content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of anything you have read on the Website.

We do not provide emergency medical services. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Website. You solely assume the risk of relying on information posted to our Website.

The Website may provide links, in its sole discretion, to other sites on the internet for your convenience in locating services and information relating to mental health counseling and/or services.  These other sites have not necessarily been reviewed by OpenCounseling and are maintained by third parties over which we exercises no control. Accordingly, OpenCounseling expressly disclaims any responsibility for the content, materials, accuracy of information, and/or quality of the services provided by, available through, or advertised on these third party web sites. Moreover, these links do not imply an endorsement with respect to any third party or any web site or the products or services provided by any third party.

BY USING THE SERVICE IN ANY WAY, YOU ACCEPT THAT SERVICES OFFERED ON OR THROUGH WWW.OPENCOUNSELING.COM, INCLUDING, BUT NOT LIMITED TO, COMMUNICATIONS FROM THE WEBSITE, ARE NOT DESIGNED WITH SECURITY AND ACCESS MANAGEMENT FOR PROCESSING “PROTECTED HEALTH INFORMATION” AS DEFINED UNDER THE HEALTH AND INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996.  BY VOLUNTARILY PROVIDING ANY INFORMATION THROUGH THE WEBSITE THAT COULD BE CONSIDERED PROTECTED HEALTH INFORMATION, YOU FULLY CONSENT TO DISCLOSURE OF SUCH INFORMATION TO INDIVIDUALS WHOM YOU CONTACT THROUGH THE SERVICE. IF YOU DO NOT ACCEPT THE FOREGOING, DO NOT ACCESS OR USE THE SERVICE.

Both OpenCounseling and this Website are based in and hosted in the United States.  We make no representation that materials in this Website are appropriate or available for use in other locations. If you access this website from outside the United States, please understand that this website may contain references and/or links to products and services that are not available or are prohibited in your jurisdiction.  Any user who is a resident of a foreign country agrees that (i) they have voluntary sought and established contact with the Website, (ii) they will not use, transmit, disseminate or upload any material, content, that would violate any applicable local, state or national laws or regulations of the foreign member’s country of residence; (iii) under no circumstance shall Company be deemed liable under any laws other than the United States; (iv) his or her participation is governed by United States law and subject to the arbitration and venue provisions stated herein; and (v) consent to having their data processed in the United States.

6.  DIRECTORY LISTINGS

The mental health provider directory provided by this Website list providers includes providers from our affiliate partners as well as providers identified by OpenCounseling based upon our research from multiple sources including the internet, and local providers.

While our mission is to make counseling available to all, and that is the overriding principle we use to include providers; we reserve the right to make the final determination if a provider should be included, excluded or removed based on our sole and absolute discretion.

If you are a provider, and wish to be excluded from our database, please contact us here. We generally process removal requests within 2 business days.

If you are  a provider, and want to be added to our database, please visit this page.

7.    PROHIBITED USES

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• To send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in these Terms of Use.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

• Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
• Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
• Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
• Use any device, software or routine that interferes with the proper working of the Website.
• Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Website.

8.  NOTIFICATION OF CLAIMS OF INFRINGEMENT

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please send your notice (“Notice”) to OpenCounseling’s agent for notice of claims of copyright or other intellectual property infringement at the following address:

OpenCounseling, Inc,
319 Argonne Ave, Long Beach, CA 90814

Please include the following with your Notice to our Abuse Agent:

• The identity of the material on OpenCounseling that you claim is infringing, in sufficient detail so that we may locate it on the website;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• Your address, telephone number, and email address;
• A statement by you declaring under penalty of perjury that (i) the above information in your Notice is accurate, and (ii) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner; and
• Your physical or electronic signature.

9.  LIMITATIONS ON SERVICE

You acknowledge that OpenCounseling may establish limits concerning use of the Service, including the maximum number of days that content will be retained by the Service, the maximum number and size of postings, email messages, or other content that may be transmitted or stored by the Service, and the frequency with which you may access the Service. You agree that OpenCounseling has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. You acknowledge that OpenCounseling reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice, and that OpenCounseling shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

10.  INTELLECTUAL PROPERTY RIGHTS

The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
• You may store files that are automatically cached by your Web browser for display enhancement purposes.
• You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
• If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
• If we provide social media features with certain content, you may take such actions as are enabled by such features.
• You may create a hyperlink to the Website, so long as the link does not portray OpenCounseling, its employees, or its affiliates in a false, misleading, derogatory, or otherwise offensive matter.
• OpenCounseling may offer various parts of the Service in RSS format so that users can embed individual feeds into a personal website or blog, or view postings through third party software news aggregators. OpenCounseling permits you to display, excerpt from, and link to the RSS feeds on your personal website or personal web blog, provided that (a) your use of the RSS feed is for personal, non-commercial purposes only, (b) each title is correctly linked back to the original post on the Service and redirects the user to the post when the user clicks on it, (c) you provide, adjacent to the RSS feed, proper attribution to “OpenCounseling” as the source, (d) your use or display does not suggest that OpenCounseling promotes or endorses any third party causes, ideas, web sites, products or services, (e) you do not redistribute the RSS feed, and (f) your use does not overburden OpenCounseling’s systems. OpenCounseling reserves all rights in the content of the RSS feeds and may terminate any RSS feed at any time.

You must not:

• Modify copies of any materials from this site.
• Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
• Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
• Display on your website, or create a hyperlink on your website to, individual postings on the Service, absent express permission granted by OpenCounseling to do so.
• Use any data mining, robots, spiders, or similar data gathering and extraction tools for any purpose.

Unless expressly permitted by OpenCounseling, you must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you wish to make any use of material on the Website other than that set out in this section, please contact us through our customer service form: www.opencounseling.com/contact/

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

11.  TRADEMARKS

The Company name, the Company logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners and are either used with permission and/or for identification purposes and are not intended to suggest any affiliation.

12.  RELIANCE ON INFORMATION POSTED

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Both Company and this Website are based in and hosted in the United States.  Company makes no representation that materials in this website are appropriate or available for use in other locations. If you access this website from outside the United States, please understand that this website may contain references and/or links to products and services that are not available or are prohibited in your jurisdiction.  Any user who is a resident of a foreign country agrees that (i) they have voluntary sought and established contact with the Website, (ii) they will not use, transmit, disseminate or upload any material, content, that would violate any applicable local, state or national laws or regulations of the foreign member’s country of residence; (iii) under no circumstance shall Company be deemed liable under any laws other than the United States; (iv) his or her participation is governed by United States law and subject to the arbitration and venue provisions stated herein; and (v) consent to having their data processed in the United States.

The Company may provide links, in its sole discretion, to other sites on the World Wide Web for your convenience in locating related information, products, and services. These other sites have not necessarily been reviewed by the Company and may be maintained by third parties over which the Company exercises no control. Accordingly, the Company expressly disclaims any responsibility for the content, materials, accuracy of information, and/or quality of the products or services provided by, available through, or advertised on these third party web sites. Moreover, these links do not imply an endorsement with respect to any third party or any web site or the products or services provided by any third party.

13.  CHANGES TO THE WEBSITE

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

14.  TERMINATION OF SERVICE

You agree that OpenCounseling, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any content within the Service, for any reason, including, without limitation, if OpenCounseling believes that you have acted inconsistently with the letter or spirit of the TOU. Further, you agree that OpenCounseling shall not be liable to you or any third-party for any termination of your access to the Service. Further, you agree not to attempt to use the Service after said termination.

You may request termination of your account at any time.  Termination will take effect within 48 hours of your request.

15.  PROPRIETARY RIGHTS

The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of OpenCounseling. You further agree not to reproduce, duplicate or copy content from the Service without the express written consent of OpenCounseling, and agree to abide by any and all copyright notices displayed on the Service. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. OpenCounseling, as well as certain other of the names, logos, and materials displayed on OpenCounseling, constitute trademarks, trade names, service marks or logos (“Marks”) of OpenCounseling or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associate therewith remains with OpenCounseling or those other entities.

Although OpenCounseling does not claim ownership of content that its users post, by posting content to any public area of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to OpenCounseling an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said content and to prepare derivative works of, or incorporate into other works, said content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting content to any public area of the Service, you automatically grant OpenCounseling all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the content on the Service by any party for any purpose.

16.  DISCLAIMER OF WARRANTIES

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

17.  LIMITATIONS OF LIABILITY

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

18.  INDEMNITY

You agree to indemnify and hold OpenCounseling, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, harmless from any claims, demand, liabilities, damages, judgments, awards, losses, costs, expenses or fees including reasonable attorney fees and court costs, made by any third party due to or arising out of content you submit, post or make available through the Service, your use of the Service, your violation of the TOU, your breach of any of the representations and warranties herein, or your violation of any rights of another.

19.  GOVERNING LAW AND JURISDICTION

All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the state and federal courts of Los Angeles County, California although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

20.  ARBITRATION

At Company’s sole discretion, it may require you to submit any disputes arising from the use of these Terms of Use or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.

Unless otherwise agreed by the parties, the arbitration panel shall consist of one arbitrator chosen in accordance with the rules of the AAA.  Any such arbitrator shall be knowledgeable in the subject area in which the dispute arises.  All discovery shall be completed within sixty (60) days following the appointment of the arbitrator.  Each party shall be entitled to representation by counsel, to appear and present written and oral evidence and argument and to cross-examine witnesses presented by the other party, provided that, where appropriate, the arbitrator may receive testimony via telephone, video or other electronic means of communication.   The arbitration award shall be in writing and the arbitrator shall provide written reasons for the award.   The award of the arbitrator shall be final and binding on the parties hereto and may be enforced in any court of competent jurisdiction.  The prevailing party in any action or proceeding to enforce its rights hereunder shall be entitled to recover reasonable attorneys’ fees and other reasonable costs, including fees of the arbitrator and the AAA, incurred in the action or proceedings.  For purposes hereof, prevailing party is defined as the party whose last settlement proposal prior to hearing in this matter is closest to the final decision. In no event shall the arbitrator award punitive or exemplary damages.

21.  LIMITATION ON TIME TO FILE CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

22.  WAIVER AND SEVERABILITY

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

23.  ENTIRE AGREEMENT

The Terms of Use and our Privacy Policies constitute the sole and entire agreement between you and OpenCounseling with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website.

24.  VIOLATION OF TERMS

Please report any violations of the TOU by sending an email through our customer service form: www.opencounseling.com/contact. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

25.    CALIFORNIA CONSUMER NOTICE

Under California Civil Code Section 1789.3, California Website users are entitled to know that they may file grievances and complaints with: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at [email protected].

26.  FEEDBACK

We welcome your questions and comments. Please contact us through our customer service form: www.opencounseling.com/contact.