Miami County Common Pleas Court

12/06/2024 04:49 PM
Shawn M. Peeples
Clerk of Courts

IN THE COMMON PLEAS COURT OF MIAMI COUNTY, OHIO

CIVIL DIVISION

THE OTHER WOMAN AND THE : CASE NO. 24-498

WIFE, LLC,
: (Judge Jeannine N. Pratt)
Plaintiff and Counterclaim Defendant,
:
vs. ANSWER AND COUNTERCLAIM
: AND THIRD-PARTY
KRISTEN JACOBS, COMPLAINT OF DEFENDANT
: KRISTEN JACOBS
Defendant and
Counterclaim/Third-Party Plaintiff, : JURY DEMAND ENDORSED
HEREON
vs. :

CHELSEA SMALLWOOD :
228 Montego Ky
Novato, CA 94949 :

and :

OLIVIA NICODEUMUS :
3191 Gearhart Rd.
Troy, OH 45373 :

Third-Party Defendants.
_________________________________________

While Defendant Kristen Jacobs ("Kristen") disputes that this matter is properly

before this Court and asserts that this matter should have been brought in arbitration, as

demonstrated in Kristen's Motion to Compel to Arbitration or Stay Pending Arbitration filed

contemporaneously with this Answer1, if an Answer is required, then Kristen responds as follows

to Plaintiff The Other Woman and the Wife's ("Plaintiff") October 24, 2024 Complaint for

Tortious Interference with Contract and Business Relations; with Jury Demand Endorsed Hereon

("Complaint"):

PARTIES, JURISDICTION, AND VENUE2

1. Kristen denies the allegations in Paragraph 1 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth or falsity of those allegations.

2. Kristen admits the allegations in Paragraph 2 of the Complaint.

3. Kristen admits that Plaintiff operates an "on-line support community" but

denies that the community is for "women healing following an experience with

infidelity." Kristen denies any remaining allegations in Paragraph 3 of the Complaint.

4. Kristen admits the allegations in Paragraph 4 of the Complaint.

5. Kristen admits that she anonymously joined Plaintiff's online subscription

only community, as permitted on Plaintiff's website, and denies all remaining allegations in

Paragraph 5 of the Complaint.

6. Kristen denies the allegations in Paragraph 6 of the Complaint.

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Kristen makes this Answer and files her Counterclaim and Third-Party Complaint in an abundance of caution and
to avoid waiving any rights or claims. The filing of this Answer, Counterclaim, and Third-Party Complaint is not a
waiver of Kristen's right to arbitration and should not be construed as consent to litigate this dispute in the Common
Pleas Court of Miami County, Ohio.

2
Kristen incorporates and restates the headings in the Complaint for purposes of organization only. To the extent
that any heading in the Complaint includes any allegations, the allegations are denied.

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 7. Kristen denies the allegations in Paragraph 7 of the Complaint.

8. Kristen denies the allegations in Paragraph 8 of the Complaint.

9. Kristen admits that she used her credit card to join Plaintiff's online

community and denies that she joined the community under false pretenses. Kristen denies all

remaining allegations in Paragraph 9 of the Complaint for lack of knowledge or information

sufficient to form a belief as to the truth or falsity of those allegations.

10. Kristen denies the allegations in Paragraph 10 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth or falsity of those allegations.

FIRST CAUSE OF ACTION

(Tortious Interference with Contractual Relations)

11. Kristen incorporates her responses to Paragraphs 1 through 10 of the

Complaint as if fully restated.

12. Kristen denies the allegations in Paragraph 12 for lack of knowledge or

information sufficient to form a belief as to the truth or falsity of those allegations. Kristen

admits that she entered into a contract with Plaintiff when she joined its online community.

13. Kristen admits that she is aware that Plaintiff's online community is fee-

based and denies all remaining allegations in Paragraph 13 of the Complaint.

14. Kristen denies the allegations in Paragraph 14 of the Complaint.

15. Kristen denies the allegations in Paragraph 15 of the Complaint.

16. Kristen denies the allegations in Paragraph 16 of the Complaint.

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 SECOND CAUSE OF ACTION
(Tortious Interference with Business Relations)

17. Kristen incorporates her responses to Paragraphs 1 through 16 of the

Complaint as if fully restated.

18. Kristen denies the allegations in Paragraph 18 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth or falsity of those allegations.

19. Kristen denies the allegations in Paragraph 19 of the Complaint.

20. Kristen denies the allegations in Paragraph 20 of the Complaint.

21. Kristen denies the allegations in paragraph 21 of the Complaint.

22. Kristen denies the allegations in Paragraph 22 of the Complaint.

Kristen denies that Plaintiff is entitled to any of the requested relief and denies

any allegations contained in the "WHEREFORE" clause of the Complaint, including all

subparts. Kristen further denies any and all allegations that are not specifically admitted.

ADDITIONAL DEFENSES

Without admitting any of the allegations in the Complaint and without admitting

or acknowledging that Kristen bears any burden of proof as to any of them, Kristen asserts the

following additional defenses. Kristen intends to rely on any additional defenses that become

available or apparent during pretrial proceedings and discovery in this action and reserves the

right to amend this Answer in order to assert all such further defenses.

FIRST ADDITIONAL DEFENSE

The Complaint fails to state a claim upon which relief can be granted.

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 SECOND ADDITIONAL DEFENSE

The Court lacks jurisdiction to resolve this dispute because Plaintiff agreed to

arbitrate the claims asserted in this matter.

THIRD ADDITIONAL DEFENSE

The Court lacks jurisdiction because Plaintiff agreed that state and federal courts

in Kings County, New York have personal and exclusive jurisdiction over any non-arbitrable

claims.

FOURTH ADDITIONAL DEFENSE

Plaintiff cannot show that Kristen intentionally interfered with any contract or

business relations, or that she lacked justification to do so.

FIFTH ADDITIONAL DEFENSE

Plaintiff's claims are barred by the doctrine of unclean hands and its own bad acts.

SIXTH ADDITIONAL DEFENSE

Plaintiff failed to take reasonable steps to protect itself from damages, if any, and

failed to mitigate any such damages.

SEVENTH ADDITIONAL DEFENSE

Plaintiff's Complaint fails because the alleged damages incurred or suffered by

Plaintiff, in whole or in part, were not proximately cause by any act or omission or failure of

Kristen. Plaintiff's damages are caused by individuals other than Kristen.

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 EIGHTH ADDITIONAL DEFENSE

Plaintiff has not suffered any injury or damage as a result of any conduct of

Kristen.

NINTH ADDITIONAL DEFENSE

To the extent that Plaintiff is injured, Plaintiff's injuries are not foreseeable or

were the result of an intervening or superseding cause.

TENTH ADDITIONAL DEFENSE

Any statements made by Kristen relating to Plaintiff are truthful.

ELEVENTH ADDITIONAL DEFENSE

Plaintiff engaged in spoliation.

TWELFTH ADDITIONAL DEFENSE

The injuries and damages alleged in the Complaint, if any, are the direct and

proximate result of acts and omissions of Plaintiff and its agents, officers, and/or employees.

THIRTEENTH ADDITIONAL DEFENSE

Plaintiff's Complaint is barred, in whole or in part, because Plaintiff's damages, if

any, were caused by independent, intervening, and/or superseding acts, errors, omissions, and

causes which Kristen had no control and for which Kristen is not liable.

FOURTEENTH ADDITIONAL DEFENSE

Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver,

estoppel, and laches.

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 FIFTEENTH ADDITIONAL DEFENSE

Plaintiff's request for punitive damages is barred by Ohio law.

SIXTEENTH ADDITIONAL DEFENSE

Kristen specifically reserves the right to assert any and all affirmative defenses

under Civ.R. 8 and any other defenses, in law or equity, that may not exist or that may become

available through information in discovery, at trial, or otherwise.

PRAYER FOR RELIEF

WHEREFORE, Kristen denies that she is liable to Plaintiff for any of the request

for relief set forth in the "WHEREFORE" claims of the Complaint, including all

subparts. Kristen requests that this Court:

1. Compel this dispute to arbitration, or in the alternative, a state or federal

court in Kings County, New York;

2. Find that Plaintiff take nothing on its claims against Kristen, including a

finding that Plaintiff is not entitled to punitive damages;

3. Dismiss Plaintiff's Complaint with prejudice and deny Plaintiff any and all

relief requested in the Complaint;

4. Enter judgment in favor of Kristen; and

5. Award Kristen her reasonable attorneys' fees, costs, and any other relief,

legal or equitable, that this Court deems appropriate.

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 KRISTEN JACOBS' COUNTERCLAIMS AND THIRD-PARTY COMPLAINT

This action arises from the malicious and unseemly conduct of Defendant The

Other Woman and the Wife, LLC ("TOW"), its owner and founder Chelsea Smallwood

("Chelsea"), and its agent and employee Olivia Nicodemus ("Olivia"). Defendant TOW and

Third-Party Defendants Chelsea and Olivia (collectively, "Defendants") have engaged in a

campaign to harass, embarrass, and cause extreme mental distress to Plaintiff Kristen Jacobs

("Kristen"). Instead of acknowledging that Kristen is the victim of Olivia's affair with Kristen's

husband, Defendants seek to further victimize Kristen by violating her privacy and publicly

posting intimate details of the affair on social media platforms, such as TikTok, YouTube, and

Instagram, in order to increase membership of TOW and otherwise profit from Defendants bad

acts. Defendants should not be permitted to further victimize and profit off of Kristen's trauma.

PARTIES AND JURISDICTION

1. Plaintiff Kristen is an individual residing at 6230 Tipp Elizabeth Road,

Troy, Ohio 45373.

2. Defendant TOW is a California limited liability company whose principal

place of business is 228 Montego Ky, Novato, California 94949.

3. Third-Party Defendant Chelsea is an individual residing at 228 Montego

Ky, Novato, California 94949. Chelsea is the founder and owner of TOW.

4. Third-Party Defendant Olivia is an individual residing at 3191 Gearhart

Road, Troy, Ohio 45373. Olivia is an employee of TOW.

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 BACKGROUND

5. Defendant TOW is an online, subscription-based community whose

purpose is to "support women in their healing journey after infidelity," specifically, the "other

woman."

6. In the fall of 2023, TOW made no effort to interview or screen members.

Upon payment of a subscription fee, anyone could become a member of TOW. Members were

also permitted to join anonymously.

7. TOW utilizes two subscription levels, the "Community Subscription" for

$78 per quarter, and the "Premium Subscription" for $98 per quarter.

8. In September 2023, Kristen joined the TOW's Community Subscription.

She agreed to be bound by the "OW Terms of Service" ("Contract Terms"), a copy of which is

attached as Exhibit 1.

9. Defendant TOW's Contract Terms (pp. 1-2) require arbitration of any

dispute arising from the use of TOW:

"ARBITRATION NOTICE. Except for certain kinds of disputes

described in Section 15 (Dispute Resolution and Arbitration), you
agree that disputes arising under these Terms will be resolved by
binding, individual arbitration, and BY ACCEPTING THESE
TERMS, YOU AND COMMUNITY OWNER ARE EACH
WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN ANY CLASS ACTION OR
REPRESENTATIVE PROCEEDING."

10. In addition, Section 15.1 requires:

"Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-

Out), you and Community Owner agree that every dispute arising
in connection with these Terms, the Community, or
communications from us will be resolved through binding

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 arbitration. Arbitration uses a neutral arbitrator instead of a judge
or jury, is less formal than a court proceeding, may allow for more
limited discovery than in court, and is subject to very limited
review by courts. This agreement to arbitrate disputes includes all
claims whether based in contract, tort, statute, fraud,
misrepresentation, or other legal theory, and regardless of whether
a claim arises during or after the termination of these Terms. Any
dispute relating to the interpretation, applicability, or enforceability
of this binding arbitration agreement will be resolved by the
arbitrator. YOU UNDERSTAND AGREE THAT, BY
ENTERING INTO THESE TERMS YOU AND COMMUNITY
OWNER ARE EACH WAIVING THE RIGHT TO A TRIAL BY
JURY OR TO PARTICIPATE IN A CLASS ACTION."

11. Defendant TOW's Contract Terms further provide that the arbitration is to

be administered by JAMS (§ 15.4), and that prior to doing so, a "Notice of Arbitration" will be

provided to the offending party and include (1) the name of the account or account number of the

complaining party; (2) a description of the nature and basis of the claim; and (3) a specific

demand for relief (§ 15.5). Defendant TOW is required to make a good faith effort to try to

resolve the claim and may only bring a matter in arbitration if a resolution cannot be resolved

within 30 days after the Notice of Arbitration (id.).

12. The arbitration provision applies after the termination of any subscription.

Contract Terms, § 15.1.

13. Defendant TOW has ignored the arbitration provision by, among other

things, filing this lawsuit and failing to engage in any good faith efforts with Kristen prior to

filing suit in Miami County.

14. The arbitration provision governs and controls this dispute.

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 15. Kristen, through her counsel, contacted TOW's counsel to have this matter

transferred to arbitration but was unsuccessful in her efforts.

OLIVIA'S ABUSE OF KRISTEN

16. Third-Party Defendant Olivia is Kristen's neighbor, and until August 2023,

Kristen considered Olivia to be a close friend and confidant. In the Spring of 2023, Kristen

confided in Olivia that she believed her husband was engaged in an affair.

17. Around the same time, Kristen began to see a therapist for counseling on

her concerns about an extramarital affair.

18. By the Summer of 2023, Kristen was suspicious that Third-Party

Defendant Olivia was the "other woman" and confronted Olivia with her suspicions. Olivia

denied the accusation. Under the guise of trying to find a therapist for herself, Olivia asked

Kristen for the contact information for Kristen's therapist. Kristen provided the information and

Olivia visited the therapist. However, instead of seeking professional services for herself, Olivia

attempted to convince the therapist that she was not participating in an affair with Kristen's

husband. Olivia lied to Kristen's therapist in order to continue the affair and to interfere with

Kristen's treatment.

19. In August 2023, Kristen confirmed her worse suspicions. After months of

Olivia's gaslighting, she learned that her husband was engaged in an affair with Olivia. By

August 25, 2023, the affair ended.

20. On or about September 11, 2023, Kristen discovered a video on TikTok

that was created by Chelsea and disclosed intimate details of the affair. Specifically, Chelsea

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read a text conversation between Kristen and Olivia, and depicted Kristen—the victim of the

affair—in a negative or false light.

21. Kristen considered the affair to be a private and personal matter, and the

affair was not publicly known.

22. After viewing the video, Kristen soon learned of Defendant TOW's private

online community for women "affected" by infidelity.

23. Kristen joined the TOW's private community anonymously. In doing so,

she relied on the TOW's Frequently Asked Questions section which provides for anonymity by

allowing members to join without use of their real name, while paying the subscription fee with

their actual name and credit card information.

24. When joining TOW's online community, its members (Kristen and Olivia)

agreed that the following conduct is prohibited:

"PROHIBITED CONDUCT. BY USING THE COMMUNITY,

YOU AGREE NOT TO:

8.1 use the Community for any illegal purpose or in violation of

any local, state, national, or international law;

8.2 harass, threaten, demean, embarrass, bully, or otherwise harm

any other user of the Community;

....

8.9 attempt to do any of the acts described in this Section 8

(Prohibited Conduct) or assist or permit any person in engaging in
any of the acts described in this Section 8."

25. Defendant TOW promised (§ 6.4) to "investigate" any allegation by a user

of TOW that another user is in violation of the Contract Terms.

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 26. Immediately upon joining the TOW's private community, Kristen learned

that Olivia shared private and intimate details of her affair with Kristen's husband, including that

Olivia engaged in intimate moments while Kristen was asleep in the same room and that Olivia

used Kristen's sex toys while Kristen was away for work. These disclosures began in at least

March 2023, and include, but are not limited to, conversations between Kristen and Olivia

discussing the affair.

27. Olivia also shared private and personal information about Kristen that she

learned because Kristen considered Olivia to be a close friend, including intimate details about

Kristen's relationship with her husband and results of a test for sexually transmitted disease

(which was only necessitated because of the affair).

28. In addition to sharing private and intimate details of the affair, Olivia

shared photographs of Kristen's family, including her minor child, and information about where

Kristen and her family live.

29. Third-Party Defendant Olivia also revealed through her postings that she

was spying on Kristen. In one post on TOW's website, Olivia boasted of using binoculars to spy

on an intimate sexual moment that Kristen and her husband shared within the privacy of their

private property.

30. Third-Party Defendant Olivia used TOW's community to cast Kristen in a

false and negative light to justify her betrayal. For example, Olivia falsely identified Kristen as a

member of a "throuple," and falsely stated that Kristen has a sexually transmitted disease.

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 31. Olivia also used TOW's community to make threats against Kristen and

her family.

32. Olivia did not make any efforts to conceal or protect Kristen's identify.

TOW AND CHELSEA PROFIT FROM SHARING KRISTEN'S

PRIVATE INFORMATION

33. Instead of monitoring and enforcing their policies protecting the privacy

rights of others, TOW and Chelsea pursued a plan to profit from Kristen's private pain and

suffering.

34. Since at least September 2023, Chelsea used text messages and other

private information shared by Olivia through TOW, and she created content for TOW's social

media platforms.

35. Chelsea made at least a dozen videos, and she also published comments in

the social media chat features, disclosing the personal and intimate information shared by Olivia.

These videos were posted on social medial websites such as TikTok, YouTube, and Instagram.

36. Chelsea also made statements about Kristen that are blatantly false in an

effort to disparage Kristen, such as falsely accusing Kristen of having a sexually transmitted

disease; as being a participant in a "throuple"; that she invited the "other woman" in to her

bedroom; Kristen bullied or harassed members of Chelsea's community, including Olivia; and

Kristen doxed or created fake social media accounts to harass Chelsea or members of TOW's

community.

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 37. Chelsea did not make any effort to protect Kristen's or her family's

identity. Indeed, members of Chelsea's community refer to Kristen in comments on content

related and unrelated to content that Chelsea created about Olivia's affair with Kristen's husband.

38. Chelsea's videos and posts were seen by members of Kristen's community.

39. Upon information and belief, TOW profits from engagement on its social

media pages. Stated differently, TOW used Kristen's trauma as clickbait to encourage

interaction with TOW's TikTok, YouTube, and Instagram pages.

40. Chelsea made these posts maliciously and with reckless disregard of the

privacy rights of Kristen.

41. As a result of Defendants' relentless campaign to harass and threaten

Kristen on social media, Kristen continued to receive treatment for the severe emotional and

mental distressed caused by Defendants' malicious acts.

TOW AND CHELSEA THREATEN KRISTEN

42. Incredibly, in November 2023, Chelsea sent an email accusing Kristen of

engaging in "harassing" behavior and threatening legal action if she did not cease such actions.

In another email Kristen was falsely accused of misappropriating TOW's intellectual property.

43. Through TOW's social media pages, Chelsea falsely accused Kristen of

bullying, doxing, releasing information about members of TOW, and creating fake accounts to

harass members of TOW's community.

44. In addition, Chelsea sent Kristen's therapist a letter containing the same

false and disparaging information about Kristen in an effort to interfere with the medical

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treatment and counseling Kristen sought in response to Defendants' harassment and online

bullying.

45. In response to Chelsea's threats, Kristen requested that information

identifying herself and her family be removed from TOW's community and social medial.

46. Kristen also informed Chelsea of Olivia's threats and harassment on

TOW's community.

47. Chelsea refused to remove the content and did not investigate Olivia's

behavior on TOW.

48. Instead, Chelsea and TOW continued their malicious conduct with utter

disregard for Kristen's privacy and mental condition.

49. For example, in January 2024, Chelsea made a video bragging of

contacting Kristen's therapist (and provided one of her followers with the therapist's contact

information) and accused Kristen of creating fake accounts to "harass" Chelsea.

50. As a result of Chelsea and TOW's social media posts, Kristen has received

threatening messages from Chelsea's community and has since had to remove the "comment"

feature from her social media pages and make her social media pages private.

51. As a direct and proximate result of Defendants' malicious bullying,

harassment, and false representations, Kristen experiences mental and physical suffering, as well

as harm to her reputation.

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 FIRST CAUSE OF ACTION FOR BREACH OF THE CONTRACT TERMS BY TOW

52. Kristen incorporates Paragraphs 1 to 51 as if restated here.

53. Kristen joined TOW's online community by paying the subscription fee,

and Kristen complied with all of the conditions associated with the Contract Terms.

54. TOW, Chelsea, and Olivia violated the terms and conditions and engaged

in over a yearlong campaign to embarrass, harass, bully, and demean Kristen through TOW's

online community.

55. Despite informing Chelsea of the harassing and inappropriate content on

TOW's community, Chelsea refused to investigate and take any action to remediate the behavior.

56. As a direct and proximate result of TOW's actions, Kristen is harmed and

entitled to recover compensatory damages for TOW's actions.

SECOND CAUSE OF ACTION FOR INVASION OF PRIVACY (FALSE LIGHT)

AGAINST DEFENDANTS

57. Kristen incorporates Paragraphs 1 to 56 as if restated here.

58. Despite knowing that Kristen was the victim of an affair, Defendants

depict Kristen in a false and negative light on TOW's online community and their social media

pages.

59. Defendants make such false depictions in order to generate "clickbait" to

gain membership and social media followers for TOW's online community.

60. Defendants' false depiction of Kristen is offensive to a reasonable person.

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 61. Defendants' actions are done maliciously, knowingly and with reckless

disregard that they are falsely depicting Kristen.

62. As a direct and proximate result, Kristen is damaged.

THIRD CAUSE OF ACTION FOR DEFAMATION AGAINST DEFENDANTS

63. Kristen incorporates Paragraphs 1 to 62 as if restated here.

64. Defendants use social media and TOW community to make false and

defamatory statements about Kristen, including but not limited to statements relating to Kristen's

marriage and that Kristen is doxing or engaging in behavior online to harass or expose members

of the TOW's community.

65. Defendants post the false and harmful statements on social media and/or

TOW community without Kristen's consent.

66. Defendants continue to post the false and harmful statements knowing that

they are harmful to Kristen's reputation and expose her to public shame and ridicule.

67. Defendants continue to post false and harmful statements about Kristen

knowing that the statements are false and with disregard that the statements are false.

68. Defendants' false statements are made with actual malice.

69. As a direct and proximate cause of Defendants' actions, Kristen is harmed

and entitled to compensatory, damages, including but not limited to harm to Kristen's reputation,

mental anguish and suffering, and the humiliation caused by Defendants' actions, special

damages, and/or nominal damages, exemplary and/or punitive damages.

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 FOURTH CAUSE OF ACTION FOR INTRUSION OF PRIVACY AGAINST
DEFENDANTS

70. Kristen incorporates Paragraphs 1 to 69 as if restated here.

71. Third-Party Defendant Olivia intentionally intruded upon Kristen's right to

seclusion on her own property by surveilling Kristen's home, which is her private property.

72. Third-Party Defendant Olivia spied on intimate moments, including sexual

acts and published the details of such moments on TOW's community.

73. Defendant TOW and Third-Party Defendant Chelsea also published those

intimate details on their social media pages.

74. Defendants also intruded upon Kristen's marriage, which she is entitled to

privacy.

75. Defendants did not take any actions to protect the identity of Kristen.

76. Defendants' instructions are highly offensive to a reasonable person.

77. Defendants' actions were done with the intent to shame and humiliate

Kristen.

78. As a direct and proximate result, Kristen is harmed.

FIFTH CAUSE OF ACTION FOR INVASION OF PRIVACY FOR PUBLICATION

PRIVATE FACTS AGAINST DEFENDANTS

79. Kristen incorporates Paragraphs 1 to 78 as if restated here.

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 80. Defendants violated Kristen's right to privacy in her marriage and home by

disclosing intimate and private facts about Kristen's marriage on social media and TOW's online

community page.

81. Defendants' disclosure of intimate details of Kristen's marriage is highly

offensive to a reasonable person.

82. Defendants intentionally disclosed such information.

83. Details about Kristen's marriage, including Olivia's affair, are not

legitimate concerns of the public, nor were they publicly known prior to Defendants' disclosures.

84. As s direct and proximate result, Kristen has been damaged in an amount

to be determined by the Court.

SIXTH CAUSE OF ACTION FOR LIBEL AGAINST DEFENDANTS

85. Kristen incorporates Paragraphs 1 to 84 as if restated here.

86. Defendants used social media to make written false and defamatory

comments about Kristen.

87. No privilege exists that permits Defendants to make such false and

defamatory statements.

88. Defendants knowingly and maliciously published the false and defamatory

statements about Kristen.

89. As a direct and proximate cause of Defendants' actions, Kristen is harmed

and entitled to compensatory, damages, including but not limited to harm to Kristen's reputation,

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mental anguish and suffering, and the humiliation caused by Defendants' actions, special

damages, and/or nominal damages, exemplary and/or punitive damages.

SEVENTH CAUSE OF ACTION FOR SLANDER AGAINST DEFENDANTS

90. Kristen incorporates Paragraphs 1 to 89 as if restated here.

91. Defendants, through "reels" or videos on social media spread false and

defamatory statements about Kristen on social media.

92. No privilege exists that permits Defendants to make such false and

defamatory statements.

93. Defendants knowingly and with actual malice published the false and

defamatory statements about Kristen.

94. As a direct and proximate cause of Defendants' actions, Kristen is harmed

and entitled to compensatory, damages, including but not limited to harm to Kristen's reputation,

mental anguish and suffering, and the humiliation caused by Defendants' actions, special

damages, and/or nominal damages, exemplary and/or punitive damages.

EIGHTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS AGAINST DEFENDANTS

95. Kristen incorporates Paragraphs 1 to 94 as if restated here.

96. Defendants knew or should have known that by continuously posting

intimate details about Kristen's marriage, intimate details of Olivia's affair, and contacting

Kristen's medical provider, Kristen would suffer from serious emotional distress.

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 97. Defendants' actions are extreme and outrageous and go beyond all bounds

of decency and not tolerated in a civilized society.

98. As a direct and proximate result of Defendants' actions, Kristen suffered

psychic injury that is so serious in nature no reasonable person should be expected to endure.

NINTH CAUSE OF ACTION FOR CIVIL CLAIM FOR TELECOMMUNICATIONS

HARASSMENT AGAINST DEFENDANTS (R.C. 2307.60 & R.C. 2917.12(B)(2))

99. Kristen incorporates Paragraphs 1 to 98 as if restated here.

100. R.C. 2307.60 permits an individual to recover civilly for harm caused by

another's criminal actions.

101. R.C. 2917.12(B)(2) imposes criminal liability on an individual who

knowingly makes a post on the internet that is made for the purpose of abusing, threatening, or

harassing another.

102. Violation of R.C. 2917.12 is a first-degree misdemeanor for a first offense

and a fifth-degree felony on subsequent offenses. R.C. 2917.12(C)(2).

103. For over a year, Defendants knowingly posted abusing, threatening, and/or

harassing videos about Kristen on the internet through TOW's community and their social media

accounts.

104. As a direct and proximate result of Defendants' actions, Kristen is harmed

and entitled to damages, including costs and fees incurred in this dispute as well as injunctive

relief.

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 TENTH CAUSE OF ACTION FOR
TORTIOUS INTERFERENCE WITH CONTRACT AGAINST DEFENDANTS

105. Kristen incorporates Paragraphs 1 to 104 as if restated here.

106. Defendants knew that Kristen was receiving professional services from a

licensed therapist and the identity of that therapist.

107. Third-Party Defendant Olivia contacted Kristen's therapist under false

pretenses with the intention of interfering in Kristen's treatment.

108. Defendant TOW and Third-Party Defendant Chelsea contacted Kristen's

therapist with false information in order to interfere with Kristen's treatment.

109. As a direct and proximate result of Defendants' actions, Kristen is harmed

and entitled to damages, including costs and fees incurred in this dispute as well as injunctive

relief.

WHEREFORE, Kristen demands that this Court find that Kristen is entitled to:

1. Compensatory damages, special damages, nominal damages, and/or

exemplary damages;

2. Injunctive relief;

3. Pre- and post-judgment interest;

4. Punitive damages;

5. Costs and reasonable attorneys' fees; and

6. Such other and further relief as this Court deems appropriate.

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 Respectfully submitted,

/s/ Morgan K. Napier

Morgan K. Napier (0099190)
D. Jeffrey Ireland (0010443)
FARUKI PLL
, 110 N. Main Street, Suite 1600
Dayton, OH 45402
Telephone: (937) 227-3700
Fax: (937) 227-3717
Email: [email protected]
[email protected]

Attorneys for Defendant Kristen Jacobs

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 JURY DEMAND

Kristen demands trial by jury of all issues contained herein.

/s/ Morgan K. Napier

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 CERTIFICATE OF SERVICE

I certify that on the 6th day of December 2024, the foregoing Answer and

Counterclaim and Third-Party Complaint of Defendant Kristen Jacobs was served via electronic

mail pursuant to Civ.R. 5(B)(2)(f) upon the following counsel of record:

Michael W. Sandner, Esq.

PICKREL, SCHAEFFER & EBELING CO.
2700 Stratacache Tower
Dayton, OH 45423
[email protected]

Counsel for Plaintiff

The Other Woman and the Wife, LLC

and certified mail service by clerk was requested for the following:

Chelsea Smallwood
228 Montego Ky
Novato, CA 94949

Third-Party Defendant

Olivia Nicodeumus
3191 Gearhart Rd.
Troy, OH 45373

Third-Party Defendant

/s/ Morgan K. Napier

Morgan K. Napier

4878-9235-2508.1

26
EXHIBIT 1
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OW Terms of Service
Last Updated: August 12, 2024

Welcome, and thank you for your interest in OW ("Community Owner," "we," or "us") and
our online community, along with any mobile or other downloadable applications that we
make available to enable access to the same (collectively, the "Community"). These
Terms of Service are a legally binding contract between you and Community Owner
regarding your use of the Community.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY ACCEPTING THESE TERMS, EITHER BY CLICKING "I ACCEPT" OR BY OTHERWISE

ACCESSING OR USING THE COMMUNITY, YOU AGREE THAT YOU HAVE READ AND
UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF AND ACCESS TO THE
COMMUNITY, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND
CONDITIONS, INCLUDING COMMUNITY OWNER'S PRIVACY POLICY (COLLECTIVELY,
THESE "TERMS") EITHER (A) ON BEHALF OF YOURSELF AS AN INDIVIDUAL, OR (B) IF
YOU ARE ACCESSING THE COMMUNITY ON BEHALF OF AN ENTITY, ORGANIZATION, OR
COMMUNITY OWNER, ON BEHALF OF SUCH ENTITY, ORGANIZATION OR COMMUNITY
OWNER FOR WHICH YOU ACT, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY
TO BIND SUCH ENTITY, ORGANIZATION OR COMMUNITY OWNER TO THIS AGREEMENT.
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT
HAVE OUR PERMISSION TO USE THE COMMUNITY. YOUR USE OF THE COMMUNITY,
AND COMMUNITY OWNER'S PROVISION OF THE COMMUNITY TO YOU, CONSTITUTES
AN AGREEMENT BY COMMUNITY OWNER AND BY YOU TO BE BOUND BY THESE
TERMS.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15

(Dispute Resolution and Arbitration), you agree that disputes arising under these Terms

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will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU
AND COMMUNITY OWNER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

1. Eligibility. You must be at least 18 years old to join the Community. By agreeing to
these Terms, you represent and warrant to us that: (a) you are at least 18 years old;
(b) you have not previously been suspended or removed from the Community; and
(c) your registration and your use of the Community is in compliance with any and
all applicable laws and regulations.

2. Accounts and Registration. To access most features of the Community, you must
register for an account. When you register for an account, you may be required to
provide us with some information about yourself, such as your name, email address,
or other contact information. You agree that the information you provide to us is
accurate, complete, and not misleading, and that you will keep it accurate and up to
date at all times. When you register, you will be asked to create a password. You are
solely responsible for maintaining the confidentiality of your account and password,
and you accept responsibility for all activities that occur under your account. If you
believe that your account is no longer secure, then you should immediately notify
us at [email protected] or by using the mechanisms
made available by Community Owner.

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3. LICENSES

3.1. Limited License. Subject to your complete and ongoing compliance with
these Terms, Community Owner grants you, solely for your personal, non-
commercial use, a limited, non-exclusive, non-transferable, non-
sublicensable, revocable license to: (a) install and use any mobile or other
downloadable application provided to you by Community Owner and
associated with the Community on a mobile device that you own or control;
and (b) access and use the Community.

3.2. License Restrictions. Except and solely to the extent such a restriction is
impermissible under applicable law, you may not: (a) reproduce, distribute,
publicly display, publicly perform, or create derivative works of the software
powering the Community; (b) make modifications to the software powering
the Community; or (c) interfere with or circumvent any feature of the
Community, including any security or access control mechanism. If you are
prohibited under applicable law from using the Community, then you may not
use it.

3.3. Feedback. We respect and appreciate the thoughts and comments from our
users. If you choose to provide input and suggestions regarding existing
functionalities, problems with or proposed modifications or improvements to
the Community (“Submissions”), then you hereby grant Community Owner
and its Service Provider (defined in Section 16.1 below) an unrestricted,
perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and
license to exploit the Submissions in any manner and for any purpose,
including to improve the Community and create other products and services.
We will have no obligation to provide you with attribution for any
Submissions you provide to us.

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4. Ownership; Proprietary Rights. The Community is managed by Community

Owner using a platform made available by Service Provider. The visual interfaces,
graphics, design, compilation, information, data, computer code (including source
code or object code), products, software, services, and all other elements of the
Community provided by Community Owner or Service Provider ("Materials") are
protected by intellectual property and other laws. All Materials included in the
Community are the property of Community Owner or its third-party licensors
(including Service Provider). Except as expressly authorized by Community Owner,
you may not make use of the Materials. There are no implied licenses in these
Terms and Community Owner and Service Provider reserve all rights to the
Materials not granted expressly in these Terms.

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5. THIRD-PARTY TERMS

5.1. Third-Party Services. Community Owner may provide tools through the
Community that enable integration with third-party platforms, add-ons,
services, or products not provided by Community Owner ("Third-Party
Services"). If you direct us to transmit data to, or receive data from, a Third-
Party Service on your behalf (including by enabling the applicable integration
in the settings of the Community), then you authorize us and Service
Provider to collect, access, use, derive, disclose, generate, transfer,
transmit, store, host, or otherwise process ("Process") any such data,
including User Content (defined in 6.1 below), in connection with the
applicable integration, in a manner consistent with the functionality of the
Community requested by you and the permissions granted to Community
Owner by the relevant integration (which Processing may include, without
limitation, performing queries on the data held by the Third-Party Service).
You acknowledge and agree that your use of a Third-Party Service is subject
to your agreement with the relevant provider of such Third-Party Service,
and that Community Owner and Service Provider are not a party to such
agreement. Community Owner and Service Provider do not control and have
no liability for Third-Party Services, including their security, functionality,
operation, availability, or interoperability with the Community or how the
Third-Party Services or their providers use User Content. All data received
from Third-Party Services on behalf of you as described herein will be
deemed User Content under these Terms.

5.2. Third-Party Software. The Community may include or incorporate third-

party software components that are generally available free of charge under
licenses granting recipients broad rights to copy, modify, and distribute
those components ("Third-Party Components"). Although the Community
is provided to you subject to these Terms, nothing in these Terms prevents,
restricts, or is intended to prevent or restrict you from obtaining Third-Party
Components under the applicable third-party licenses or to limit your use of
Third-Party Components under those third-party licenses.

6. USER CONDUCT

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6.1. User Content Generally. Certain features of the Community may permit
users to submit, upload, publish, broadcast, or otherwise transmit ("Post")
content to the Community, including messages, reviews, photos, video or
audio (including sound or voice recordings and musical recordings
embodied in the video or audio), images, folders, data, text, and any other
works of authorship or other works ("User Content"). You retain any
copyright and other proprietary rights that you may hold in the User Content
that you Post to the Community, subject to the licenses granted in these
Terms.

6.2. Limited License Grant to Community Owner. By Posting User Content to

or via the Community, you grant Community Owner and Service Provider a
worldwide, non-exclusive, royalty-free, fully paid right and license (with the
right to sublicense through multiple tiers) to host, store, transfer, publicly
display, publicly perform (including by means of a digital audio
transmission), communicate to the public, reproduce, modify for the
purpose of formatting for display, create derivative works as authorized in
these Terms, and distribute your User Content, in whole or in part, in any
media formats and through any media channels, in each instance whether
now known or hereafter developed. All of the rights you grant in these Terms
are provided on a through-to-the-audience basis, meaning the owners or
operators of external services will not have any separate liability to you or
any other third party for User Content Posted or otherwise used on external
services via the Community. You agree to pay all monies owing to any person
or entity resulting from Posting your User Content and from Community
Owner's or Service Provider's exercise of the license set forth in this
Section.

6.3. You Must Have Rights to the Content You Post; User Content
Representations and Warranties. You must not Post User Content if you
are not the owner of or are not fully authorized to grant rights in all of the
elements of that User Content including in all ambient music and underlying
musical works embodied in any sound recording. Community Owner
disclaims any and all liability in connection with User Content. You are solely
responsible for your User Content and the consequences of providing User

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Content via the Community. By providing User Content via the Community,
you affirm, represent, and warrant to us that:

(a) you are the Community Owner and owner of the User Content, or
have the necessary licenses, rights, consents, and permissions to
authorize Community Owner and users of the Community to use and
distribute your User Content as necessary to exercise the licenses
granted by you in this Section, in the manner contemplated by
Community Owner, Service Provider, the Community, and these
Terms;

(b) your User Content, and the Posting or other use of your User Content
as contemplated by these Terms, does not and will not: (i) infringe,
violate, misappropriate, or otherwise breach any third-party right,
including any copyright, trademark, patent, trade secret, moral right,
privacy right, right of publicity, or any other intellectual property,
contract, or proprietary right; (ii) slander, defame, libel, or invade the
right of privacy, publicity or other property rights of any other person;
or (iii) cause Community Owner or Service Provider to violate any law
or regulation or require Community Owner or Service Provider to
obtain any further licenses from or pay any royalties, fees,
compensation or other amounts or provide any attribution to any third
parties; and

(c) your User Content could not be deemed by a reasonable person to be

objectionable, profane, indecent, pornographic, harassing,
threatening, embarrassing, hateful, or otherwise inappropriate.

6.4. User Content Disclaimer. Community Owner and Service Provider are
under no obligation to edit or control User Content that you or other users
Post and will not be in any way responsible or liable for User Content.
Community Owner or Service Provider may, however, at any time and
without prior notice, screen, remove, edit, or block any User Content that in
our sole judgment violates these Terms, is alleged to violate the rights of
third parties, or is otherwise objectionable. You understand that, when using
the Community, you will be exposed to User Content from a variety of

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sources and acknowledge that User Content may be inaccurate, offensive,

indecent, or objectionable. You agree to waive, and do waive, any legal or
equitable right or remedy you have or may have against Community Owner
or Service Provider with respect to User Content. If notified by a user or
content owner that User Content allegedly does not conform to these Terms,
Community Owner may (or may permit Service Provider to) investigate the
allegation and determine whether to remove the User Content, which
Community Owner and Service Provider reserve the right to do at any time,
without notice, and for any reason. For clarity, Community Owner does not
permit infringing activities on the Community.

6.5. Monitoring Content. Community Owner and Service Provider do not control
and do not have any obligation to monitor: (a) User Content; (b) any content
made available by third parties; or (c) the use of the Community by its users.
You acknowledge and agree that Community Owner and Service Provider
reserve the right to, and may from time to time, monitor any and all
information transmitted or received through the Community for operational
and other purposes. If at any time Community Owner or Service Provider
choose to monitor the content, then Community Owner and Service Provider
still assume no responsibility or liability for content or any loss or damage
incurred as a result of the use of content. During monitoring, information
may be examined, recorded, copied, and used in accordance with
Community Owner's Privacy Policy. Community Owner and Service Provider
may block, filter, mute, remove or disable access to any User Content
uploaded to or transmitted through the Community without any liability to
the user who Posted such User Content to the Community or to any other
users of the Community.

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7. COMMUNICATIONS

7.1. Push Notifications. When you install our app on your mobile device, you
agree to receive push notifications, which are messages an app sends you
on your mobile device when you are not in the app. You can turn off
notifications by visiting your mobile device's "settings" page.

7.2. In-App Notifications. When you install our app on your mobile device, we
may send you in-app notifications. You can turn off notifications in the app's
"settings" page.

7.3. Email. We may send you emails concerning our products and services, as
well as those of third parties. You may opt out of promotional emails by
following the unsubscribe instructions in the promotional email itself. Even if
you opt out of receiving promotional messages from us, you will continue to
receive administrative messages from us.

8. PROHIBITED CONDUCT. BY USING THE COMMUNITY, YOU AGREE NOT TO:

8.1 use the Community for any illegal purpose or in violation of any local, state,
national, or international law;

8.2 harass, threaten, demean, embarrass, bully, or otherwise harm any other
user of the Community;

8.3 violate, encourage others to violate, or provide instructions on how to

violate, any right of a third party, including by infringing or misappropriating
any third-party intellectual property right;

8.4 access, search, or otherwise use any portion of the Community through the
use of any engine, software, tool, agent, device, or mechanism (including
spiders, robots, crawlers, and data mining tools) other than the software or
search agents provided by Community Owner or Service Provider;

8.5 interfere with security-related features of the Community, including by: (a)
disabling or circumventing features that prevent or limit use, printing or

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copying of any content; or (b) reverse engineering or otherwise attempting

to discover the source code of any portion of the Community except to the
extent that the activity is expressly permitted by applicable law;

8.6 interfere with the operation of the Community or any user's enjoyment of the
Community, including by: (a) uploading or otherwise disseminating any virus,
adware, spyware, worm, or other malicious code; (b) making any unsolicited
offer or advertisement to another user of the Community; (c) collecting
personal information about another user or third party without consent; or
(d) interfering with or disrupting any network, equipment, or server
connected to or used to provide the Community;

8.7 perform any fraudulent activity including impersonating any person or entity,
claiming a false affiliation or identity, accessing any other Community
account without permission, or falsifying your age or date of birth;

8.8 sell or otherwise transfer the access granted under these Terms or any
Materials (as defined in Section 4(Ownership; Proprietary Rights)) or any
right or ability to view, access, or use any Materials; or

8.9 attempt to do any of the acts described in this Section 8 (Prohibited

Conduct) or assist or permit any person in engaging in any of the acts
described in this Section 8 (Prohibited Conduct).

9. INTELLECTUAL PROPERTY RIGHTS PROTECTION

9.1. Respect of Third Party Rights. Community Owner respects the intellectual
property rights of others, takes the protection of intellectual property rights
very seriously, and asks users of the Community to do the same. Infringing
activity will not be tolerated on or through the Community.

9.2. DMCA Notification. We comply with the provisions of the Digital Millennium
Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as
amended) and the Community is subject to Service Provider's DMCA policy.

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10. Modification of Terms. We may, from time to time, change these Terms. Please
check these Terms periodically for changes. Revisions will be effective immediately
except that, for existing users, material revisions will be effective 30 days after
posting or notice to you of the revisions unless otherwise stated. We may require
that you accept modified Terms in order to continue to use the Community. If you
do not agree to the modified Terms, then you should remove your User Content and
discontinue your use of the Community. Except as expressly permitted in this
Section 10 (Modification of Terms), these Terms may be amended only by a written
agreement signed by authorized representatives of the parties to these Terms.

11. TERM, TERMINATION, AND MODIFICATION OF THE COMMUNITY

11.1. Term. These Terms are effective beginning when you accept the Terms or
first download, install, access, or use the Community, and ending when
terminated as described in Section 11.2 (Termination).

11.2. Termination. If you violate any provision of these Terms, then your
authorization to access the Community and these Terms automatically
terminate. In addition, Community Owner may, at its sole discretion,
terminate these Terms or your account on the Community, or suspend or
terminate your access to the Community, at any time for any reason or no
reason, with or without notice, and without any liability to you arising from
such termination. You may terminate your account and these Terms at any
time by using the mechanism designated in the Community or contacting
customer service at [email protected].

11.3. Effect of Termination. Upon termination of these Terms: (a) your license
rights will terminate and you must immediately cease all use of the
Community; (b) you will no longer be authorized to access your account or
the Community; (c) you must pay Community Owner any unpaid amount that
was due prior to termination; and (d) all payment obligations accrued prior to
termination and Sections 3.3 (Feedback), 4 (Ownership; Proprietary Rights),
11.3 (Effect of Termination), 12 (Indemnity), 13 (Disclaimers; No Warranties
by Community Owner), 14 (Limitation of Liability), 15 (Dispute Resolution
and Arbitration), and 16 (Miscellaneous) will survive. You are solely

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responsible for retaining copies of any User Content you Post to the
Community since upon termination of your account, you may lose access
rights to any User Content you Posted to the Community. If your account has
been terminated for a breach of these Terms, then you are prohibited from
creating a new account on the Community using a different name, email
address or other forms of account verification.

11.4. Modification of the Community. Community Owner reserves the right to

modify or discontinue all or any portion of the Community at any time
(including by limiting or discontinuing certain features of the Community),
temporarily or permanently, without notice to you. Community Owner will
have no liability for any change to the Community, including any paid-for
functionalities of the Community, or any suspension or termination of your
access to or use of the Community. You should retain copies of any User
Content you Post to the Community so that you have permanent copies in
the event the Community is modified in such a way that you lose access to
User Content you Posted to the Community.

12. Indemnity. To the fullest extent permitted by law, you are responsible for your use
of the Community, and you will defend and indemnify Community Owner, its
affiliates, and their respective shareholders, directors, managers, members,
officers, employees, consultants, and agents (together, the "Specified Entities")
and Service Provider from and against every claim brought by a third party, and any
related liability, damage, loss, and expense, including attorneys' fees and costs,
arising out of or connected with: (1) your unauthorized use of, or misuse of, the
Community; (2) your violation of any portion of these Terms, any representation,
warranty, or agreement referenced in these Terms, or any applicable law or
regulation; (3) your violation of any third-party right, including any intellectual
property right or publicity, confidentiality, other property, or privacy right; or (4) any
dispute or issue between you and any third party. We reserve the right, at our own
expense, to assume the exclusive defense and control of any matter otherwise
subject to indemnification by you (without limiting your indemnification obligations
with respect to that matter), and in that case, you agree to cooperate with our
defense of those claims.

13. DISCLAIMERS; NO WARRANTIES BY COMMUNITY OWNER

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13. DISCLAIMERS; NO WARRANTIES BY COMMUNITY OWNER

13.1. THE COMMUNITY AND ALL MATERIALS AND CONTENT AVAILABLE

THROUGH THE COMMUNITY ARE PROVIDED “AS IS” AND ON AN “AS
AVAILABLE” BASIS. COMMUNITY OWNER AND SERVICE PROVIDER
DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE COMMUNITY AND ALL MATERIALS AND
CONTENT AVAILABLE THROUGH THE COMMUNITY, INCLUDING: (a) ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b)
ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR
TRADE. COMMUNITY OWNER AND ITS SERVICE PROVIDER DO NOT
WARRANT THAT THE COMMUNITY OR ANY PORTION OF THE
COMMUNITY, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE
COMMUNITY, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS,
VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMMUNITY OWNER
DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

13.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED

BY YOU FROM THE COMMUNITY, SPECIFIED ENTITIES, OR SERVICE
PROVIDER, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE
COMMUNITY WILL CREATE ANY WARRANTY REGARDING ANY OF THE
SPECIFIED ENTITIES OR THE COMMUNITY THAT IS NOT EXPRESSLY
STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE
THAT MAY RESULT FROM THE COMMUNITY AND YOUR DEALING WITH
ANY OTHER COMMUNITY USER. YOU UNDERSTAND AND AGREE THAT
YOU USE ANY PORTION OF THE COMMUNITY AT YOUR OWN DISCRETION
AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO
YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE
DEVICE USED IN CONNECTION WITH THE COMMUNITY) OR ANY LOSS OF
DATA, INCLUDING USER CONTENT.

13.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 13

(DISCLAIMERS; NO WARRANTIES BY COMMUNITY OWNER) APPLY TO THE
FULLEST EXTENT PERMITTED BY LAW. Community Owner does not
disclaim any warranty or other right that Community Owner is prohibited

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from disclaiming under applicable law.

14. LIMITATION OF LIABILITY

14.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE

SPECIFIED ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING
DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER
INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO
OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE COMMUNITY OR
ANY MATERIALS OR CONTENT ON THE COMMUNITY, WHETHER BASED
ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE,
OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SPECIFIED
ENTITY OR SERVICE PROVIDER HAS BEEN INFORMED OF THE POSSIBILITY
OF DAMAGE.

14.2. EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING ARBITRATION)

AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT
PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SPECIFIED
ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE
USE OF OR ANY INABILITY TO USE ANY PORTION OF THE COMMUNITY OR
OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU
HAVE PAID TO COMMUNITY OWNER FOR ACCESS TO AND USE OF THE
COMMUNITY IN THE 12 MONTHS PRIOR TO THE EVENT OR
CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.

14.3. WITHOUT LIMITING THE FOREGOING, YOU AND COMMUNITY OWNER

AGREE THAT SERVICE PROVIDER IS NOT A PARTY TO THIS AGREEMENT
AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE PROVIDER
WILL HAVE NO LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT. YOU AGREE THAT IF YOU BRING A CLAIM
AGAINST SERVICE PROVIDER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, SUCH CLAIM IS SUBJECT TO THE DISPUTE
RESOLUTION PROCEDURE SET FORTH IN SECTION 15, AND SERVICE

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PROVIDER WILL BE DEEMED SUBSTITUTED FOR COMMUNITY OWNER

THEREUNDER SOLELY FOR THE PURPOSE OF SUCH CLAIM.

14.4. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF

LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS
INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES
UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF
THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE
PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER
PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14
(LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.

15. DISPUTE RESOLUTION AND ARBITRATION

15.1. Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-
Out), you and Community Owner agree that every dispute arising in
connection with these Terms, the Community, or communications from us
will be resolved through binding arbitration. Arbitration uses a neutral
arbitrator instead of a judge or jury, is less formal than a court proceeding,
may allow for more limited discovery than in court, and is subject to very
limited review by courts. This agreement to arbitrate disputes includes all
claims whether based in contract, tort, statute, fraud, misrepresentation, or
any other legal theory, and regardless of whether a claim arises during or
after the termination of these Terms. Any dispute relating to the
interpretation, applicability, or enforceability of this binding arbitration
agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS,

YOU AND COMMUNITY OWNER ARE EACH WAIVING THE RIGHT TO A
TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

15.2. Exceptions. Although we are agreeing to arbitrate most disputes between

us, nothing in these Terms will be deemed to waive, preclude, or otherwise
limit the right of either party to: (a) bring an individual action in small claims
court; (b) pursue an enforcement action through the applicable federal,

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state, or local agency if that action is available; (c) seek injunctive relief in a
court of law in aid of arbitration; or (d) to file suit in a court of law to address
an intellectual property infringement claim.

15.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you
may opt out of the provisions of this Section 15 (Dispute Resolution and
Arbitration) within 30 days after the date that you agree to these Terms by
sending a letter to OW, Attention: Legal Department – Arbitration Opt-Out,
[email protected] that specifies: your full legal
name, the email address associated with your account on the Community,
and a statement that you wish to opt out of arbitration ("Opt-Out Notice").
Once Community Owner receives your Opt-Out Notice, this Section 15
(Dispute Resolution and Arbitration) will be void and any action arising out of
these Terms will be resolved as set forth in Section 16.3 (Governing Law).
The remaining provisions of these Terms will not be affected by your Opt-
Out Notice.

15.4. Arbitrator. This arbitration agreement, and any arbitration between us, is
subject to the Federal Arbitration Act and will be administered by the JAMS
under the rules applicable to consumer disputes (collectively, "JAMS
Rules") as modified by these Terms. The JAMS Rules and filing forms are
available online at www.jamsadr.com, by calling the JAMS at +1-800-352-
5267 or by contacting Community Owner.

15.5. Commencing Arbitration. Before initiating arbitration, a party must first

send a written notice of the dispute to the other party by certified U.S. Mail
or by Federal Express (signature required) or, only if that other party has not
provided a current physical address, then by electronic mail ("Notice of
Arbitration"). Community Owner's address for Notice is: OW,
[email protected]. The Notice of Arbitration
must: (a) identify the name or account number of the party making the
claim; (b) describe the nature and basis of the claim or dispute; and (c) set
forth the specific relief sought ("Demand"). The parties will make good faith
efforts to resolve the claim directly, but if the parties do not reach an
agreement to do so within 30 days after the Notice of Arbitration is received,
you or Community Owner may commence an arbitration proceeding. If you

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commence arbitration in accordance with these Terms, Community Owner

will reimburse you for your payment of the filing fee, unless your claim is for
more than US$10,000 or if Community Owner has received 25 or more
similar demands for arbitration, in which case the payment of any fees will be
decided by the JAMS Rules. If the arbitrator finds that either the substance
of the claim or the relief sought in the Demand is frivolous or brought for an
improper purpose (as measured by the standards set forth in Federal Rule of
Civil Procedure 11(b)), then the payment of all fees will be governed by the
JAMS Rules and the other party may seek reimbursement for any fees paid
to JAMS.

15.6. Arbitration Proceedings. Any arbitration hearing will take place in the
county and state of your residence unless we agree otherwise or, if the claim
is for US$10,000 or less (and does not seek injunctive relief), you may
choose whether the arbitration will be conducted: (a) solely on the basis of
documents submitted to the arbitrator; (b) through a telephonic or video
hearing; or (c) by an in-person hearing as established by the JAMS Rules in
the county (or parish) of your residence. During the arbitration, the amount
of any settlement offer made by you or Community Owner must not be
disclosed to the arbitrator until after the arbitrator makes a final decision and
award, if any. Regardless of the manner in which the arbitration is
conducted, the arbitrator must issue a reasoned written decision sufficient
to explain the essential findings and conclusions on which the decision and
award, if any, are based.

15.7. Arbitration Relief. Except as provided in Section 15.8 (No Class Actions),
the arbitrator can award any relief that would be available if the claims had
been brought in a court of competent jurisdiction. If the arbitrator awards
you an amount higher than the last written settlement amount offered by
Community Owner before an arbitrator was selected, Community Owner will
pay to you the higher of: (a) the amount awarded by the arbitrator and (b)
US$10,000. The arbitrator’s award shall be final and binding on all parties,
except (1) for judicial review expressly permitted by law or (2) if the
arbitrator’s award includes an award of injunctive relief against a party, in
which case that party shall have the right to seek judicial review of the

injunctive relief in a court of competent jurisdiction that shall not be bound

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injunctive relief in a court of competent jurisdiction that shall not be bound

by the arbitrator’s application or conclusions of law. Judgment on the award
may be entered in any court having jurisdiction.

15.8. No Class Actions. YOU AND COMMUNITY OWNER AGREE THAT EACH
MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN
ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further,
unless both you and Community Owner agree otherwise, the arbitrator may
not consolidate more than one person’s claims, and may not otherwise
preside over any form of a representative or class proceeding.

15.9. Modifications to this Arbitration Provision. If Community Owner makes

any substantive change to this arbitration provision, you may reject the
change by sending us written notice within 30 days of the change to
Community Owner’s address for Notice of Arbitration, in which case your
account with Community Owner will be immediately terminated and this
arbitration provision, as in effect immediately prior to the changes you
rejected will survive.

15.10. Enforceability. If Section 15.8 (No Class Actions) or the entirety of this
Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable,
or if Community Owner receives an Opt-Out Notice from you, then the
entirety of this Section 15 (Dispute Resolution and Arbitration) will be null
and void and, in that case, the exclusive jurisdiction and venue described in
Section 16.3 (Governing Law) will govern any action arising out of or related
to these Terms.

16. MISCELLANEOUS

16.1. Third-Party Beneficiary. The Community is powered by a technology

platform provided by CircleCo, Inc. ("Service Provider"). You and we
acknowledge and agree that (a) Service Provider is an intended third-party
beneficiary to these Terms, (b) is entitled to rights and benefits hereunder,
and (c) may enforce these Terms against you as if it were an original party
hereto.

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16.2. General Terms. These Terms, including the Privacy Policy and any other
agreements expressly incorporated by reference into these Terms, are the
entire and exclusive understanding and agreement between you and
Community Owner regarding your use of the Community. These Terms or
any rights under these Terms, may not be assigned either by us or by you in
whole or in part, by operation of law or otherwise, without our Service
Provider's prior written consent. The failure to require performance of any
provision will not affect our right to require performance at any other time
after that, nor will a waiver by us of any breach or default of these Terms, or
any provision of these Terms, be a waiver of any subsequent breach or
default or a waiver of the provision itself. Use of Section headers in these
Terms is for convenience only and will not have any impact on the
interpretation of any provision. Throughout these Terms the use of the word
"including" means "including but not limited to." If any part of these Terms is
held to be invalid or unenforceable, then the unenforceable part will be given
effect to the greatest extent possible, and the remaining parts will remain in
full force and effect.

16.3. Governing Law. These Terms are governed by the laws of the State of New
York without regard to conflict of law principles. You and Community Owner
submit to the personal and exclusive jurisdiction of the state courts and
federal courts located within Kings County, New York for resolution of any
lawsuit or court proceeding permitted under these Terms. Service Provider
operates the service that we use to provide the Community from its offices
in New York, and we make no representation that Materials included in the
Community are appropriate or available for use in other locations.

16.4. Privacy Policy. You understand and agree to the processing of your
personal data in connection with the Community in accordance with
Community Owner's Privacy Policy, which is hereby incorporated by
reference into Section 16.4 of these Terms.

16.5. Consent to Electronic Communications. By using the Community, you

consent to receiving certain electronic communications from us as further
described in our Privacy Policy. Please read our Privacy Policy to learn more

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about our electronic communications practices. You agree that any notices,
agreements, disclosures, or other communications that we send to you
electronically will satisfy any legal communication requirements, including
that those communications be in writing.

16.6. Notice to California Residents. If you are a California resident, then under
California Civil Code Section 1789.3, you may contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N
112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in
order to resolve a complaint regarding the Community or to receive further
information regarding use of the Community.

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17. Notice Regarding Apple. This Section 17 (Notice Regarding Apple) only applies to
the extent you are using our mobile application on an iOS device. You acknowledge
that these Terms are between you and Community Owner only, not with Apple Inc.
("Apple"), and Apple is not responsible for the Community or the content of it.
Apple has no obligation to furnish any maintenance and support services with
respect to the Community. If the Community fails to conform to any applicable
warranty, you may notify Apple, and Apple will refund any applicable purchase price
for the mobile application to you. To the maximum extent permitted by applicable
law, Apple has no other warranty obligation with respect to the Community. Apple is
not responsible for addressing any claims by you or any third party relating to the
Community or your possession and/or use of the Community, including: (1) product
liability claims; (2) any claim that the Community fails to conform to any applicable
legal or regulatory requirement; or (3) claims arising under consumer protection or
similar legislation. Apple is not responsible for the investigation, defense,
settlement, and discharge of any third-party claim that the Community and/or your
possession and use of the Community infringe a third party's intellectual property
rights. You agree to comply with any applicable third-party terms when using the
Community. Apple and Apple's subsidiaries are third-party beneficiaries of these
Terms, and upon your acceptance of these Terms, Apple will have the right (and will
be deemed to have accepted the right) to enforce these Terms against you as a
third-party beneficiary of these Terms. You hereby represent and warrant that: (a)
you are not located in a country that is subject to a U.S. Government embargo or
that has been designated by the U.S. Government as a "terrorist supporting"
country; and (b) you are not listed on any U.S. Government list of prohibited or
restricted parties.

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