This Dispute Resolution Process hereby incorporates by reference all terms, conditions rules, policies and guidelines on the Site, including the OpenTotal Terms of Use (“Terms of Use”). This Dispute Resolution Process is effective as of January 1, 2010. Your continued use of the Site after such time will signify your acceptance of this Dispute Resolution Process.
HOW TO AVOID DISPUTES
Disputes may arise due to miscommunication and can often be resolved amicably between the parties. OpenTotal recommends the following steps to avoid disputes:
- Follow all rules and guidelines in the Site Policies.
- Use our optional escrow service to ensure full protection in the event of a dispute. The escrow service is fully described in our Terms of Service.
- Use the Terms and Work Flow features found by logging onto the Site, to define key milestones
- Maintain open lines of communication. Be clear about your expectations and check in frequently with the other party.
WHAT IF I HAVE A DISPUTE WITH ANOTHER MEMBER?
If you have used the Site in accordance with the OpenTotal Terms of Service and you have a dispute with another User (“Opposing Party”), the Dispute Resolution Process consists of three phases:
- Peer Resolution- Available on all Exchanges.
- OpenTotal Dispute Assistance- Available only for Escrow Exchanges, which is defined as an exchange between two parties that agree to utilize the escrow service.
- Arbitration- Available only for Escrow Jobs.
Notice of Disputes Resolved. Any agreement resolving the dispute between you and the Opposing Party must be posted (and confirmed by both parties) as text or attachments onto the Workroom to allow OpenTotal to maintain a record of the disposition of the matter.
Key Dates
For all disputes regardless of type and status of a Job in dispute, you must be aware of the following key dates in any dispute:
"Breach Date" means the later of (1) the date on which the events causing the breach of your agreement with the other User first took place, and (2) the date on which you learned, or reasonably should have learned, about those events.
"Dispute Initiation Date" means the date a Client or Provider submits a Dispute Notice Form on the Site. You must submit your Dispute Notice Form on the Site prior to the six-month anniversary of the Breach Date.
"Limitations Date"means the date six months following the Breach Date. You do not have a right to initiate a claim or cause of action or demand arbitration after the Limitations Date.
Limitations Period. The six-month anniversary of the Breach Date is the statute of limitations date.
"Limitations Date."All claims must have a Dispute Initiation Date prior to the Limitations Date or the claim is barred. You do not have a right to initiate a claim or demand Arbitration after the Limitations Date. (see the section entitled"Arbitration for Escrow Jobs"below).
Member Resolution for Non-Escrow Jobs
For non-Escrow Jobs, please submit a Dispute Notice Form on the Site. You must allow the Opposing Party 15 days to respond and attempt to resolve the dispute with you, before you initiate any claim.
If you are unable to resolve your differences with the Opposing Party, you must initiate an action in Arbitration (see the section entitled"Arbitration for Escrow Jobs"below).
Non-Binding OpenTotal Dispute Assistance. If the Exchange is an Escrow Exchange, and if you submit the Dispute Notice Form and you cannot reach an agreement with the Opposing Party within 7 business days, then OpenTotal will notify both the Opposing Party and you to try to re-establish communication between the two of you to encourage settlement of the dispute. Both parties will submit their positions in writing and include any supporting documentation. OpenTotal will review the materials and submit a non-binding recommendation to both parties in an attempt to resolve the dispute. If one of the parties chooses to appeal the decision, it is within their right to seek redress in Arbitration.
If either party fails to respond to an email message from OpenTotal regarding violation, dispute or complaint within two business days, OpenTotal has the right to terminate that party's Job or Account. OpenTotal is a neutral third party and has no further obligations.
By using the Site you agree that if for any reason the parties fail to agree on a resolution to the dispute within 15 days of the Dispute Initiation Date, then the provisions of the section below entitled “Arbitration for Escrow Exchanges” will automatically apply.
Arbitration for Escrow Exchanges
Arbitration. If the Exchange is an Escrow Exchange, if the dispute is not settled within 15 days after the Initiation Date, you agree that if there are funds in the Escrow Account you and the Opposing Party (the "Dispute Parties") each has the right for 30 days following the Release Request of Escrow Funds to demand binding, non-appearance-based arbitration to resolve the dispute ("Arbitration"). Any such Arbitration will be conducted by a neutral third-party dispute resolution service that OpenTotal will choose and engage in its sole discretion ("Arbitrator"). If the Opposing Party demands Arbitration in accordance with the foregoing, you agree to submit to such Arbitration in accordance with the OpenTotal Terms of Service. If value in dispute is less than $600, the Arbitrator must be a single arbitrator unless both parties request a panel of Arbitrators. If the amount in dispute is $600 or more, the Arbitrator must be a panel unless both parties request a single Arbitrator.
You agree that in any such Arbitration: (a) each Dispute Party will pay one-half of the first $600 of the Arbitrator's fees; (b) each Dispute Party will pay one-half of any amount by which the Arbitrator's fees exceed $600; and (c) each Dispute Party will solely bear and pay any other costs it incurs related to the Arbitration.
You hereby agree that OpenTotal will charge your Account, or your credit card, bank account, or PayPal, for the amount of the Arbitrator's fees owed by you in accordance with the foregoing.
Failure to Arbitrate.
If Provider or Client requests binding Arbitration (“Requesting Party”), the other party (“Responding Party”) has three business days following receipt of notice from the Arbitrator to submit to such Arbitration. If Responding Party fails to submit to such Arbitration within three business days, OpenTotal will promptly notify Responding Party of such failure and demand that Responding Party submit to such Arbitration within three more business days. If Responding Party fails to submit within three business days after OpenTotal sends such notice, then: (1) Responding Party will be deemed to have agreed to the Release sought by the Requesting Party; (2) Responding Party will be deemed to have authorized OpenTotal to, and OpenTotal will, make the Release sought by the Requesting Party; and (3) OpenTotal has the right to terminate orsuspend the Responding Party’s Account.
If both Provider and Client fail to request binding Arbitration for an unresolved dispute by the Limitations Date in accordance with this Dispute Resolution Process, then Provider will be deemed to have instructed OpenTotal, and OpenTotal will, make a Release to the Client. In that case, OpenTotal will deduct an escrow fee of $25 of the amount of the Release, whichever is greater, to recover any banking, payment processing, and administrative costs and other costs of receiving and holding funds.
Reminders and Statute of Limitation.
OpenTotal will send periodic reminders to you and the Opposing Party (the "Dispute Parties") to remind you of the ongoing dispute and the need to resolve it prior to the Limitations Date. If the dispute has not been resolved and neither Dispute Party has demanded Arbitration by the Limitations Date, then (1) Provider will be deemed to have agreed to the Release sought by the Client; (2) if the dispute involves funds held in Escrow, Provider will be deemed to have authorized OpenTotal to, and OpenTotal will, make the Release sought by the Client; (3) OpenTotal has the right to terminate or suspend either or both the Provider's and the Client's Account; and (4) any further claims or causes of action in such dispute will be forever barred. The Arbitrator has the power to determine whether the Breach Date entered into OpenTotal's system is correct or if the Limitations Date should be extended or "tolled" due to your reasonable reliance on the Opposing Party's assurances that it would cure the breach.
Release of Escrowed Funds.
If the Exchange in dispute involved Escrow and the Limitations Date has passed (based on the Breach Date in the OpenTotal System): (1) OpenTotal will send the Dispute Parties notice of its intent to release the funds, and (2) unless you give OpenTotal notice, within 10 days after OpenTotal's notice is sent, that you have claimed in the Arbitration that the Limitation Date has been "tolled" and that your claims are not barred, then: (3) Provider will be deemed to have agreed to the Release sought by the Client; (4) if the dispute involves funds held in Escrow, Provider will be deemed to have authorized OpenTotal to, and OpenTotal will release such funds. In that case, OpenTotal will deduct an escrow fee of $25 or 2.75% of the amount of the Release, whichever is greater, to recover any banking, payment processing, and administrative costs and other costs of receiving and holding funds.
Arbitration Rules.
The sole and exclusive evidence admissible in the Arbitration is the contents of the Exchange zone. OpenTotal will provide to the Arbitrator access to information in the Exchange zone for the dispute. You agree to be responsible for ensuring that the Exchange zone contains all of your communications with the Opposing Party related to the dispute. The Dispute Parties must comply with the following rules: (a) the Arbitrator will specify whether the Arbitration will be conducted online, by telephone, or solely based on written submissions posted in the Workroom; (b) the Arbitration shall not involve any personal appearance by the Dispute Parties or witnesses unless otherwise mutually agreed by the Dispute Parties; and (c) any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. Before the Arbitrator renders its decision in the dispute, each of the Dispute Parties will be allowed to upload to the Exchange zone one last closing statement or argument for the Arbitrator related to the dispute.
Arbitration Award.
Once there is an arbitration award, you must send an email to OpenTotal with the case identification information, the usernames of the Dispute Parties and the name of the Exchange. OpenTotal will then verify the award with Arbitrator.
Noncompliance and Abuse
Improperly Filed Claims.
All claims between you and the Opposing Party must be resolved in accordance with the terms on this page. All claims filed or brought contrary to these terms shall be considered improperly filed. Should you file a claim contrary to these terms, the Opposing Party may recover attorneys' fees and costs up to $2,000, provided that the Opposing Party has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim.
Abuse.
If you initiate an excessive number of Arbitrations, OpenTotal reserves the right to suspend or terminate your Account immediately upon giving notice to you. However, any disputes for any Jobs that existed prior to termination will be subject to the OpenTotal Terms of Service.
Feedback Disputes
If you are involved in a dispute involving feedback, please refer to the Rating and Feedback System section in the Site Usage Policy to find out in what circumstances OpenTotal will consider removing feedback.
CONTACTING US
If you wish to report a violation of Site Policies, have any questions or need assistance, please contact
OpenTotal Customer Support as follows:
Web Support: Customer Support Ticketing System
Department Contacts: Contact webform
Online Help: FAQ and Customer Support Options
