TERMS OF SERVICE
These Terms of Use (this “Agreement”) explain the terms by which paying subscribers (“hereinafter referred to as Customers”) may use the MindMend Platform, created by MindMend LLC( hereinafter referred to as “Provider”) and other online or mobile Services Provider may provide (hereinafter referred to as “Services”).
Please read this Agreement carefully before using the Services.
By accessing or using the Services, you agree that you have read, understood, and agree to be bound by this Agreement, and to the collection and use of your information as set forth in Provider Privacy Policy, whether or not you are a registered user of Provider Services. This Agreement applies to all Customers, visitors, users, and others who access the Services and those that access the mobile app Provider Services creates (collectively, “Users”).
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. HOW PROVIDER UPDATES THESE TERMS OF USE
This Agreement is maintained on our website. We reserve the right, in our sole discretion, to modify or replace this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material way, we will update the ‘last updated' date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Service.
2. USE OF PROVIDER SERVICES
a. Eligibility. Because Provider respect the rights of children and parents, you may use the Services only if you can form a binding contract, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of this Agreement. Because Provider respects the User community, the Services is not available to any Users previously removed from the Services.
b. Payment. Customer will pay the recurring subscription fees and other fees set forth in the proposal or in the on-line fee schedule provided at the time of sign up (“Fees”). All Fees are due when the order is placed. Customer acknowledges payment constitutes agreement to the terms of Services.
c. Refunds. Customer acknowledges that payment of Fees is authorization to Provider to begin providing Marketing & Creative Services. These Services include, but are not limited to, providing platform access, publishing Apps, platform setup and App building. Provider will start providing Services immediately upon Customer payment of Fees. All Fees are earned when received and are non-refundable. Fees may be paid via ACH or Credit Card only, unless otherwise agreed to, and Customer authorizes Provider to set up an automated recurring billing process. If Customer desires to terminate the Services, such notice must be delivered to Provider in writing via email before the next recurring billing is processed. Customer agrees that they are not entitled to receive a refund of any Fee and Customer further agrees that they will not dispute the charges and/or request a chargeback of any Fee from their credit card processor or banking institution.
d. Term and Termination. Subscribers agree to sign up for a minimum term length of 90 days. Billing will be collected monthly, quarterly, semiannually or annually (collectively referred to as “Term” or “Terms”). All amounts are earned when received and are non-refundable. The Agreement will continue for the entirety of the Term and automatically renew for successive periods equal to the Term. Either party may terminate this Agreement at any time and for any reason without notice to the other party. If a Customer terminates this agreement before the end of the current Term, the customer will be required to pay the Remaining amounts due through the end of the Term and are not be entitled to a refund of any amount. Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, including the payment obligations due through the end off the Term or which have accrued up to the date of such termination or expiration. The provisions of Sections 5-10 shall survive termination or expiration of this Agreement.
e. Your Services. You can browse and enjoy the Services without creating a profile or account. By connecting to the Services with a third-party Services like Facebook, you give Provider permission to access and use your information from that Services as permitted by that Services, and to store your log-in credentials for that Services. For more information on the types of information Provider collects from these third-party Services, please read Provider Privacy Policy below.
f. Your responsibility for your Apps: You are solely responsible for the activity that occurs on or through your App. Provider will not be liable for your losses caused by any unauthorized use of your account, and you shall be solely liable for the losses due to such unauthorized use.
g. Groups. Users may create or join groups on the Services in order to share articles and other content, and to send messages to other Group members (a “Group”).
h. Your interaction with other Users. You are solely responsible for your interactions with other Users. Provider reserves the right, but have no obligation, to monitor disputes between you and other Users. Provider will have no liability for your interactions with other Users, or for any User’s action or inaction.
i. Separate End User Policies. User agrees to abide by the separate Terms of Use, Privacy Policy and Acceptable Use Policy maintain in the Google Play and Apple/iTunes App stores. As part of Provider Services, Provider will review your app for Compliant with Google and Apple standards; however, Apple and Google will determine final compliance independently; Provider cannot guarantee that an app will be published by either the Apple or Google Play. For details regarding Google and Apple requirements and standards, go to https://play.google.com/about/developer-content-policy and https://developer.apple.com/app-store/review/guidelines, respectively.
j. Services limitations. Different Services limitations exist for each of Provider subscription plans. Please refer to Provider website for details.
k. Changes to the Services. Provider always innovating and finding ways to provide Provider Users with new and innovative features and Services. Therefore, Provider may, without prior notice, change the Services; change the pricing of the Services; add or delete features of the Services, to you or to Users generally; or create usage limits for the Services.
3. ACCEPTABLE USE OF THE SERVICES
Provider provide Users with an amazing platform to discover content, and discuss and share that content with others. To keep the Services running smoothly for all of Provider Users, you agree that you will use the Services only in a manner consistent with the Acceptable Use Policy below.
4. SHARING YOUR CONTENT
a. Your content. Provider may allow you to post content on the Services, including comments, photos, blog posts, messages, blog URLs, and other materials. Any content a User submits, posts, displays, or other wise makes available on the Services, including all Intellectual Property Rights (defined below) therein, is referred to as “User Content.” YOU RETAIN OWNERSHIP OF YOUR USER CONTENT.
b. How Provider can use your content. You own all of the User Content that you post or publish (“post”) on the Services. You permit Provider to use your company and/or trade name and logo on Provider website and other promotional materials.
c. Your responsibility for your content. By uploading, posting, submitting or otherwise disclosing or distributing User Content, you represent and warrant that you own all rights in your User Content and that any User Content you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (defined below) or rights of publicity or privacy. Provider reserves the right, but are not obligated, to reject and/or remove any User Content that Provider believes, in Provider sole discretion, violates these provisions. Provider takes no responsibility and assume no liability for any User Content that you or any other Users or third parties post or send over the Services. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility, and you agree that the Provider are only acting as a passive conduit for your online distribution and publication of your User Content. Provider is not responsible for any public display or misuse of your User Content.
d. Definition of Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trade mark, trade dress and Services mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
5. PROVIDER CONTENT
a. Content. Except for User Content, the Services, and all Intellectual Property Rights including therein and related thereto, are Provider exclusive property (“Exclusive Content”). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license to the Exclusive Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the Exclusive Content, including without limitation any materials or content accessible on the Services. Provider name and other graphics, logos, designs, page headers, button icons, scripts, and Services names are trademarks, trademarks or trade dress protected by the laws of the United States and/or other countries or jurisdictions. Provider trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or Services in any manner that is likely to cause confusion. Use of the Exclusive Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
b. To publish and update apps to Google Play and the Apple App Store, it is required Provider provide proprietary information and files such as, but not limited to, APKs, IPAs, P12s, keystore certificates, push notification certificates, etc. These files and information are a proprietary part of Provider Services and will not provided to Users.
c. If Provider assists the Customer with (including coordinating with a 3rd party) providing enhancement(s) to the Services or Software, creates custom functionality, creates custom plugins, including any and all derivatives thereto (collectively referred to an “Enhancements”), even if the Customer paid Provider for such Enhancements, such Enhancements will be owned by Provider and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.
d. The Customer owns or has rights to all intellectual property rights in and to any enhancements in functionality or custom plugins the Customer (or Customer’s representative) make independent of Provider through capabilities provided by a registered developer account. In such cases, the Customer is solely responsible for all maintenance and support related to such enhancements and plugins, including but not limited to, Provider updates in Services and Software and iOS and Android updates.
e. Feedback you provide. Provider values input from Provider Users, and are always interested in learning of ways Provider can make the Services better. You may choose to or Provider may invite you to submit comments, ideas or feedback about the Services, including without limitation about how to improve the Services or Provider products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Provider under any fiduciary or other obligation, and that Provider is free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Provider does not waive any rights to use similar or related Feedback previously known to Provider, or developed by Provider employees, or obtained from sources other than you.
f. Analytics. Provider monitors User Services activity.
6. MESSAGING
Provider may allow you to send messages through Provider Services to other Users or to third parties (“Messages”). Provider may send administrative messages to you and other Users. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS MindMend LLC. (hereinafter, “Provider” “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of Provider Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with Provider through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Provider in other contexts.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Provider. While you consent to receive messages sent using an auto dialer, the foregoing shall not be interpreted to suggest or imply that any or all of Provider mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto dialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Provider in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of Provider employees to remove you from Provider list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your Services plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Provider of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Provider, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of Provider Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD PROVIDER HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY PROVIDER OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM PROVIDER ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of software and professional Services.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Provider.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email Provider at https://mindmendapp.com/ Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Provider Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. Provider will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless Services provider/network operator and is outside of Provider control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless Service subscriber with text messaging Services. Not all cellular phone providers carry the necessary Services to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, Services, or promotion that is unlawful where such product, Services, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Web Form Opt-in: By filling out a contact form you acknowledge that you may be contacted by one of Provider representatives through email, SMS or phone calls. All phone calls or conference calls may be recorded for training purposes.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Provider, or between you and any other third-party Services provider acting on Provider behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Monroe County, Pennsylvania before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Provider principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of Provider Programs.
Miscellaneous: You warrant and represent to Provider that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. Provider reserves the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
7. COPYRIGHT POLICY
Provider requires that Users of the Services respect the copyright and other intellectual property rights of all third parties.
8. PRIVACY
Provider cares about the privacy of Provider Users. You understand that by using the Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in Provider Privacy Policy below, and to have your Personally Identifiable Information collected, used, transferred to and processed in the United States. Provider cannot guarantee that unauthorized third parties will never be able to defeat Provider security measures. You acknowledge that you provide your information at your own risk.
9. INDEMNITY
You agree to defend, indemnify and hold Provider harmless, along with Provider parents, subsidiaries, agents, affiliates, customers, vendors, officers and employees from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys fees and cost) arising from: (i) your use of and access to the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule, or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account.
10. NO WARRANTY
THE SERVICES, INCLUDING ALL CONTENT, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PROVIDER, PROVIDER AFFILIATES, AND PROVIDER LICENSORS DO NOT WARRANT THAT THE CONTENT ON THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COM PUTER SYSTEM OR LOSS OF DATA, INCLUDING USER CONTENT, THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
PROVIDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH PROVIDER SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICES, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PROVIDER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
11. THIRD-PARTY LINKS, SITES AND SERVICES
The Services may contain links to other websites, advertisers, Services, special offers, or other events or activities that are not owned or controlled by Provider. Because Provider has no control over such sites and resources, you acknowledge and agree that Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or Services available on or through any such site or resource. You understand that these Terms of Services and Provider Privacy Policy below do not apply to your use of such sites. Provider encourage you to be aware of when you leave the Services, and to read the terms and conditions and privacy policy of any third-party website or Services that you visit.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER, PROVIDER AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) WITH RESPECT TO THE SERVICES OR ANY CONTENT THEREON FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICESS (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100, EVEN IF PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES WILL PROVIDER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Services is controlled from its facilities in the United States. Provider makes no representations that the Services is appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
13. TERMINATION OF YOUR ACCOUNT AND THE SERVICES
Provider may terminate or suspend the Services in whole or in part immediately, without prior notice or liability, for any reason or for no reason, including without limitation, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Services will immediately cease.
All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
14. GOVERNING LAW AND ARBITRATION
a. Governing Law. You agree that: (i) the Services shall be deemed solely based in Pennsylvania; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over Provider, either specific or general, in jurisdictions other than Pennsylvania. This Agreement shall be governed by the internal substantive laws of the State of Pennsylvania, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a state court located in Monroe County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania, for any actions for which Provider retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a Provider copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as further set forth in the Arbitration provision below.
b. Arbitration. For any dispute with Provider, you agree to first contact Provider and attempt to resolve the dispute with Provider informally. In the unlikely event that Provider is not able to resolve a dispute it has with you after attempting to do so informally, Provider each agrees to resolve any claim, dispute, or controversy (excluding any claims Provider have for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless Provider agrees otherwise, the arbitration will be conducted in the county where you reside. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDU AL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRE SENTATIVE PROCEEDING, AND, UNLESS PROVIDER AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, PROVIDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15. MISCELLANEOUS TERMS
a. No Agency; Waiver. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Provider in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
b. Notification. Provider may provide notifications, whether such notifications are required by law or are for other business purposes, to you via email notice, “push” notification on your mobile device, written or hard copy notice, or through posting of such notice on the Services, as determined by Provider in Provider sole discretion. Provider reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. Provider is not responsible for any automatic filtering you or your network provider may apply to email notifications Provider sends to the email address you provide Provider.
c. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Provider in connection with the Services, shall constitute the entire agreement between you and Provider concerning the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
d. Assignment. This Agreement is not assignable, transferable or sub licensable by you except with Provider prior written consent. Provider may transfer, assign or delegate this Agreement and its rights and obligations without consent.
e. Contact. Please contact Provider with any questions regarding this Agreement.