Term Of Use
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS”) CAREFULLY. MY STORE. (“MY STORE” OR “WE” OR “US”) MAKES AVAILABLE BY ACCESSING OR USING THIS WEBSITE AND ANY OTHER WEBSITES OF MY STORE (COLLECTIVELY, THE “WEBSITE”), AND THE SERVICE AND APPLICATIONS DESCRIBED IN THESE TERMS. BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR APPLICATIONS (THE “SERVICE”), DOWNLOADING THE MY STORE SOFTWARE APPLICATIONS FOR MOBILE DEVICES (EACH, AN “APPLICATION”, AND COLLECTIVELY, THE “APPLICATIONS”), COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MY STORE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICE.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT MY STORE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6.5 BELOW.
THE TERMS
OF USE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES
AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE
NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY MY STORE IN ITS SOLE DISCRETION AT
ANY TIME. When changes are made, MY STORE will make a new copy of the Terms of
Service available at the Website. We will also update the “Last Updated” date
at the top of the Terms. If we make any material changes, and you have
registered to use the Service, we will also send an e-mail to you at the last
e-mail address you provided to us pursuant to the Terms. Any changes to the
Terms will be effective immediately for new users of the Website or Service and
for any other users who expressly agree to them. Otherwise, such changes will
be effective thirty (30) days after posting of notice of such changes on the
Website for existing users, provided that any material changes shall be
effective for users who have a registered account on the Website (each, a
“Registered User”) upon the earlier of thirty (30) days after posting of notice
of such changes on the Website or thirty (30) days after dispatch of an e-mail
notice of such changes to Registered Users. MY STORE may require you to agree
to the updated Agreement in a manner specified before further use of the
Website or the Service is permitted. If you do not agree to any change(s) after
receiving a notice of such change(s), you shall stop using the Website and/or
the Service. Otherwise, your continued use of the Website and/or Service
constitutes
your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW
THE THEN-CURRENT AGREEMENT.
1. MY
STORE Service Description.
MY STORE
offers a variety of tools, applications, web services and widgets that allows
users to capture, control and manage data and messages on your electronic
devices. You can use the Service to intercept messages, move files from one
storage location on your device to a restricted storage location, and create
backup copies of your data. The Service further includes a virtual private
network service (the “VPN Service”) which provides private and secure data
transmission.
2. Use of
the Service and MY STORE Properties.
MY STORE
and its licensors own all rights, title, and interest in the Application, the
Software, the Website, the Service, and the information and content available
on or through the foregoing (collectively, the “MY STORE Properties”). The MY
STORE Properties are protected by copyright laws throughout the world. Subject
to the Terms, MY STORE grants you a limited license to reproduce portions of
the MY STORE Properties for the sole purpose of using the MY STORE Properties
for your personal, non-commercial purposes. Unless otherwise specified by MY
STORE in a separate license, your right to use any MY STORE Properties is
subject to the Terms. MY STORE and its licensors reserve all rights not granted
in these Terms.
2.1
Application License.
Application
License. Subject to your compliance with the Terms, MY STORE grants you a
limited, non-exclusive, non-transferable, non-sublicensable, revocable license
to download, install and use a copy of the Application on a single mobile
device or computer that you own or control and to run such copy of the
Application solely for your own personal use. Furthermore, with respect to any
Application accessed through or downloaded from the Apple App Store (an “App
Store Sourced Application”), you will only use the App Store Sourced
Application (i) on an Apple-branded product that runs the iOS (Apple’s
proprietary operating system) and (ii) as permitted by the “Usage Rules” set
forth in the Apple App Store Terms of Service.
2.2 MY
STORE Software.
Use of any
software and associated documentation, other than the Application, that is made
available via the Website or the Service (“Software”) is governed by the Terms.
Any copying or redistribution of the Software is prohibited, including any
copying or redistribution of the Software to any other server or location,
redistribution or use on a service bureau basis. If the Software is a
pre-release version, then you are not permitted to use or otherwise rely on the
Software for any commercial or production purposes. MY STORE grants you a
non-assignable, non-transferable, non- sublicensable, revocable non-exclusive
license to use the Software for the sole purpose of enabling you to use the
Service in the manner permitted by the Terms. Some Software may be offered
under an open source license that we will make available to you. There may be
provisions in the open source license that expressly override some of the
Terms.
2.3 VPN
Service.
VPN
Service. The VPN Service has sufficient capacity to accommodate average
non-commercial use. However, from time to time during periods of
extraordinarily heavy usage of the VPN Service, you may temporarily experience
slower service or service
unavailability.
No such temporary slowdown or unavailability shall constitute a breach or
default by MY STORE of its obligations. MY STORE reserves the right to
temporarily suspend or limit your use of the VPN Service if: (a) your usage
level exceeds our average customer use level or otherwise negatively impacts
the overall health of the network determined by MY STORE in its sole and
absolute discretion, or (b) you exceed any bandwidth limitations associated
with your account. No such suspension or limitation of the VPN Service shall
constitute a breach or default by MY STORE of its obligations.
2.4
Updates.
You
understand that the MY STORE Properties are evolving. As a result, MY STORE may
require you to accept updates to the Application or the Software that you have
installed on your computer or mobile device. You acknowledge and agree that MY
STORE may update the MY STORE Properties with or without notifying you. Any
updates to the MY STORE Properties are subject to these Terms. You may need to
update third party software from time to time in order to continue using the MY
STORE Properties.
2.5
Certain Restrictions.
The rights
granted to you in the Terms are subject to the following restrictions: (a) you
shall not license, sell, rent, lease, transfer, assign, reproduce, distribute,
host or otherwise commercially exploit the MY STORE Properties, (b) you shall
not frame or utilize framing techniques to enclose any MY STORE trademark or
logo (including images, text, page layout or form); (c) you shall not use any
metatags or other “hidden text” using MY STORE’s name or trademarks; (d) you
shall not modify, translate, adapt, merge, make derivative works of,
disassemble, decompile, reverse compile or reverse engineer any part of the MY
STORE Properties except to the extent the foregoing restrictions are expressly
prohibited by applicable law; (e) you shall not attempt or engage in, any
potentially harmful acts that are directed against the MY STORE Properties,
including but not limited to violating or attempting to violate any security
features of the MY STORE Properties, using any manual or automated software,
devices or other processes (including but not limited to spiders, robots,
scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or
download data from any MY STORE Properties, or introducing viruses, worms, or
similar harmful code into the MY STORE Properties; (f) access the MY STORE
Properties in order to build a similar or competitive website, application or
service; (g) except as expressly stated herein, no part of the MY STORE
Properties may be copied, reproduced, distributed, republished, downloaded,
displayed, posted or transmitted in any form or by any means; (h) you shall not
remove or destroy any copyright notices or other proprietary markings contained
on or in the MY STORE Properties; (i) you shall not use the MY STORE Properties
in any manner that could damage, disable, overburden, or impair MY STORE’s
systems or networks, or interfere with any other party’s use and enjoyment of
the MY STORE Properties, including without limitation, by means of overloading,
“flooding,” “spamming,” “mail bombing”, or “crashing” the MY STORE Properties;
(j) you may not attempt to gain unauthorized access to any computer systems or
networks associated with the MY STORE Properties; (k) . Any future release,
update or other addition to the MY STORE Properties shall be subject to the
Terms. MY STORE, its suppliers and service providers reserve all rights not
granted in the Terms. Any unauthorized use of the MY STORE Properties
terminates the licenses granted by MY STORE pursuant to the Terms.
2.6 Third
Party Materials.
As a part
of the MY STORE Properties, you may have access to materials that are hosted by
another party. You agree that it is impossible for MY STORE to monitor such
materials and that you access these materials at your own risk.
3.
Registration.
3.1
Registering Your Account.
In order
to access certain features of the MY STORE Properties, you may be required to
become a Registered User. For purposes of the Terms, a “Registered User” is a
user who has registered an account on the Application (“Account”).
3.2
Registration Data.
In
registering for the Service, you agree to (1) provide true, accurate, current
and complete information about yourself as prompted by the Service’s
registration form (the “Registration Data”); and (2) maintain and promptly
update the Registration Data to keep it true, accurate, current and complete.
You represent that you are (1) at least sixteen (16) years old; (2) of legal
age to form a binding contract; and (3) not a person barred from using the
Service under the laws of the United States, your place of residence or any
other applicable jurisdiction. You agree that you shall monitor your Account to
restrict use by minors, and you will accept full responsibility for any
unauthorized use of the MY STORE Properties by minors. If you provide any
information that is untrue, inaccurate, not current or incomplete, or MY STORE
has reasonable grounds to suspect that such information is untrue, inaccurate,
not current or incomplete, MY STORE has the right to suspend or terminate your
Account and refuse any and all current or future use of the MY STORE Properties
(or any portion thereof). You agree not to create an Account using a false
identity or information, or on behalf of someone other than yourself. You agree
that you shall not have more than one Account per platform at any given time.
MY STORE reserves the right to remove or reclaim any usernames at any time and
for any reason, including but not limited to, claims by a third party that a
username violates the third party’s rights. You agree not to create an Account
or use the MY STORE Properties if you have been previously removed by MY STORE,
or if you have been previously banned from the Service.
3.3
Activities Under Your Account.
You are
responsible for all activities that occur under your Account. You may not share
your Account or password with anyone, and you agree to (1) notify MY STORE
immediately of any unauthorized use of your password or any other breach of
security; and (2) exit from your Account at the end of each session.
3.4
Necessary Equipment and Software.
You must
provide all equipment and software necessary to connect to the MY STORE
Properties, including but not limited to, a mobile device that is suitable to
connect with and use the MY STORE Properties, in cases where the Service offer
a mobile component. You are solely responsible for any fees, including Internet
connection or mobile fees, that you incur when accessing the MY STORE
Properties.
4.
Responsibility for Content.
4.1 Types
of Content.
You
acknowledge that all information, data, text, software, music, sound,
photographs, graphics, video, messages, tags and/or other materials accessible
through the MY STORE Properties, whether publicly posted or privately
transmitted (“Content”), are the sole responsibility of the party from whom
such Content originated. This means that you, and not MY STORE, are entirely
responsible for all Content that you upload, post, e-mail,
transmit
or otherwise make available (“Make Available”) through MY STORE Properties
(“Your Content”).
5. User
Conduct.
As a
condition of use, you agree not to use the MY STORE Properties for any purpose
that is prohibited by the Terms or by applicable law. You shall not (and shall
not permit any third party) either (a) to take any action or (b) Make Available
any Content on or through the Website and the Service that: (i) infringes or
violates any patent, trademark, trade secret, copyright, contractual right,
right of publicity or other right of any person or entity; (ii) violates any
acceptable use or other information technology policy that may apply to your
use of any computer system or network; (iii) is unlawful, threatening, abusive,
harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s
privacy, tortious, obscene, offensive, or profane; (iv) constitutes
unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves
commercial activities and/or sales without MY STORE’s prior written consent,
such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vi)
impersonates any person or entity, including any employee or representative of
MY STORE; or (vii) is inappropriate in any other manner that MY STORE
determines in its sole, reasonable discretion.
6. Fees
and Purchase Terms.
6.1
General Purpose of Terms: Sale of Service, not Software.
The
purpose of the Terms is for you to secure access to the Services. All fees set
forth within and paid by you under the Terms shall be considered solely in furtherance
of this purpose. In no way are these fees paid considered payment for the sale,
license, or use of MY STORE’s Software or Application, and, furthermore, any
use of MY STORE’s Software or Application by you in furtherance of the Terms
will be considered merely in support of the purpose of the Terms.
6.2
Payment.
You agree
to pay all fees or charges to your Account in accordance with the fees,
charges, and billing terms in effect at the time a fee or charge is due and
payable. MY STORE collects payments through a limited number of payment
services (“Payment Provider”). You must provide MY STORE with valid account
information for the respective chosen Payment Provider. Your Payment Provider
agreement governs your use of the designated credit card or other payment
method, and you must refer to that agreement and not the Terms to determine
your rights and liabilities. By providing MY STORE with your payment
information, you agree that MY STORE is authorized to immediately invoice your
Account for all fees and charges due and payable to MY STORE hereunder and that
no additional notice or consent is required. You agree to immediately notify MY
STORE of any change in payment credentials for payment hereunder. MY STORE
reserves the right at any time to change its prices and billing methods, either
immediately upon posting on the Website or by e-mail delivery to you.
6.3
Service Subscription Fees.
You will
be responsible for payment of the applicable fee for any Services (each, a
“Service Subscription Fee”) at the time you create your Account and select the
term of your subscription (each, a “Service Commencement Dat”). Except as set
forth in the Terms, all fees for the Services are non-refundable. No contract
will exist between you and MY STORE for the Services until MY STORE or the
Payment Provider, for example Apple or Google, accepts your order by a
confirmatory e-mail, SMS/MMS message, or other appropriate means of
communication.
6.4
Taxes.
MY STORE’s
fees are net of any applicable Sales Tax. If any Service, or payments for any
Service, are subject to Sales Tax in any jurisdiction and you have not remitted
the applicable Sales Tax to MY STORE, you will be responsible for the payment
of such Sales Tax and any related penalties or interest to the relevant tax
authority and you will indemnify MY STORE for any liability or expense we may
incur in connection with such Sales Taxes. Upon our request, you will provide
us with official receipts issued by the appropriate taxing authority, or such
other evidence that you have paid all applicable taxes. For purposes of this
section, “Sales Tax” shall mean any sales or use tax, and any other tax
measured by sales proceeds, that MY STORE its permitted to pass to its
customers that is the functional equivalent of a sales tax where the applicable
taxing jurisdiction does not otherwise impose a sales or use tax.
6.5
Automatic Renewal.
Your
subscription will continue indefinitely until terminated in accordance with the
Terms. After your initial subscription period, and again after any subsequent
subscription period, your subscription will automatically commence on the first
day following the end of such period (each a “Renewal Commencement Date”) and
continue for an additional equivalent period, at MY STORE’s then-current price
for such subscription. You agree that your Account will be subject to this
automatic renewal feature unless you cancel your subscription at least 24 hours
prior to the Renewal Commencement Date by logging into and going to the “Manage
App Subscriptions” page in the Apple App Store or the “My Apps” page in the
Google Play Store app. The same page will permit you to change your Account
settings if you do not wish your subscription to renew automatically, or if you
want to change or terminate your subscription.If you cancel your subscription,
you may use your subscription until the end of your then-current subscription
term; your subscription will not be renewed after your then-current term
expires. However, you will not be eligible for a prorated refund of any portion
of the subscription fee paid for the then- current subscription period. By
subscribing, you authorize MY STORE to charge your Payment Provider now, and
again at the beginning of any subsequent subscription period. Upon renewal of
your subscription, if MY STORE does not receive payment from your Payment
Provider, (i) you agree to pay all amounts due on your Account upon demand,
and/or (ii) you agree that MY STORE may either terminate or suspend your
subscription and continue to attempt to charge your Payment Provider until
payment is received (upon receipt of payment, your Account will be re-activated
and for purposes of automatic renewal, your new subscription commitment period
will begin as of the day payment was received).
6.6
Pre-purchased Minutes and Texts.
Users of
the Telephony Service may be able to purchase calling minutes and text
messaging packages (collectively, “Pre-Purchased Packages“). Pre-Purchased
Packages are not legal tender and cannot be reloaded, resold, transferred for
value, redeemed for cash or applied to any other account, except to the extent
described herein or as required by applicable law. MY STORE prohibits and does
not recognize any purported transfers of Pre-Purchased Packages outside of the
Telephony Services, or the purported sale, lease, gift or trade in the “real
world” of anything that appears or originates outside of the Telephony
Services. Accordingly, you may not trade, sell or attempt to sell Pre-Purchased
Packages for “real” money, or exchange those items or currency for value of any
kind outside the Telephony Services. Any such transfer or attempted transfer is
prohibited and void, and will subject your Account to termination. You shall
ensure that you have sufficient Pre-Purchased Packages in your Account before
you initiate any transaction that requires such credits. If
you have
insufficient Telephony Credits in your Account to complete the transaction, the
transaction will be cancelled. ALL TRANSACTIONS MADE USING Pre-Purchased
Packages ARE FINAL AND ARE NON-REFUNDABLE.
7. MY
STORE Is Provided As-Is.
MY STORE
CANNOT GUARANTEE THAT YOUR CONTENT WILL BE SAFE FROM OUTSIDE ATTACKS, HACKERS
OR OTHER WAYS OF ACCESSING YOUR CONTENT ON THE FILE SYSTEMS. YOU EXPRESSLY
UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE
OF THE MY STORE PROPERTIES IS AT YOUR SOLE RISK, AND THE MY STORE PROPERTIES
ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MY STORE
EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT.
8.
Limitation of Liability.
YOU
UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MY STORE BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE WEBSITE, THE APPLICATION, THE SOFTWARE, THE
SERVICE, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE,
DATA OR PROFITS, WHETHER OR NOT MY STORE HAD BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL MY STORE BE LIABLE TO YOU FOR MORE
THAN THE AMOUNT RECEIVED BY MY STORE AS A RESULT OF YOUR USE OF THE SERVICE
DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH YOU FIRST ASSERT YOU
CLAIM. IF YOU HAVE NOT PAID MY STORE ANY AMOUNTS DURING SUCH PERIOD, MY STORE’S
SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50.00).
THE
TELEPHONY SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS
MESSAGES TO ANY EMERGENCY SERVICES. NEITHER MY STORE NOR ITS SUPPLIERS WILL BE
LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE OR LOSS
ARISING FROM OR RELATED TO THE INABILITY TO USE THE TELEPHONY SERVICES TO
CONTACT EMERGENCY SERVICES.
9.
Remedies
9.1
Violations.
If MY
STORE becomes aware of any possible violations by you of the Terms, MY STORE
reserves the right to investigate such violations. If, as a result of the
investigation, MY STORE believes that criminal activity has occurred, MY STORE
reserves the right to refer the matter to, and to cooperate with, any and all
applicable legal authorities. MY STORE is entitled, except to the extent
prohibited by applicable law, to disclose any information or materials on the
MY STORE Properties, including Your Content, in MY STORE’s possession in
connection with your use of the MY STORE Properties, to (1) comply with
applicable laws, legal process or governmental request; (2) enforce the Terms;
(3) respond to any claims that Your Content violates the rights of third
parties; (4) respond to your requests for customer service; or (5) protect the
rights, property or personal safety of MY STORE, its Users or the public, and
all enforcement or other government officials, as MY STORE in its sole
discretion believes to be necessary or appropriate.
9.2
Breach.
In the
event that MY STORE determines, in its sole discretion, that you have breached
any portion of the Terms, or have otherwise demonstrated inappropriate conduct,
MY STORE reserves the right to:
(a) Warn
you via e-mail (to any e-mail address you have provided to MY STORE) that you
have violated the Terms;
(b) Delete
any of Your Content provided by you or your agent(s) to the MY STORE
Properties;
(c)
Discontinue your registration(s) with the MY STORE Properties;
(d)
Discontinue your subscription to any Service;
(e) Notify
and/or send Your Content to and/or fully cooperate with the proper law
enforcement authorities for further action; and/or
(f) Pursue
any other action which MY STORE deems to be appropriate.
9.3 No
Subsequent Registration.
If your
registration(s) with or ability to access the MY STORE Properties is
discontinued by MY STORE due to your violation of any portion of the Terms,
then you agree that you shall not attempt to re-register with or access the MY
STORE Properties through use of a different member name or otherwise, and you
acknowledge that you will not be entitled to receive a refund for fees related
to those MY STORE Properties to which your access has been terminated. In the
event that you violate the immediately preceding sentence, MY STORE reserves
the right, in its sole discretion, to immediately take any or all of the
actions set forth herein without any notice or warning to you.
10.
Miscellaneous Legal Terms.
10.1
Electronic Communications
The
communications between you and MY STORE use electronic means, whether you visit
the Website or send MY STORE e-mails, or whether MY STORE posts notices on the
Website or communicates with you via e-mail. For contractual purposes, you (1)
agree to receive communications from MY STORE in an electronic form; and (2)
agree that all terms and conditions, agreements, notices, disclosures, and other
communications that MY STORE provides to you electronically satisfy any legal
requirement that such communications would satisfy if it were to be in writing.
The foregoing does not affect your statutory rights
10.2
Release
You hereby
release MY STORE and its successors from claims, demands, any and all losses,
damages, rights, and actions of any kind, including personal injuries, death,
and property damage of any kind arising in connection with or as a result of
the Terms or your use of the Website, the Application, the Software or the
Service. If you are a California resident, you hereby waive California Civil
Code Section 1542, which states, “A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which, if known by him must have materially affected
his settlement with the debtor.
10.3
Assignment
The Terms,
and your rights and obligations hereunder, may not be assigned, subcontracted,
delegated, or otherwise transferred by you without MY STORE’s prior written
consent, and any attempted assignment, subcontract, delegation, or transfer in
violation of the foregoing will be null and void.
10.4 Force
Majeure
MY STORE
and its licensors shall not be liable for any delay or failure to perform
resulting from causes outside its reasonable control, including, but not
limited to, acts of God; war; terrorism; riots; embargos; acts of civil or
military authorities; fire; floods; accidents; strikes or shortages of
transportation facilities; fuel; energy; labor; materials; problems with your
computing or network infrastructure, hardware or product; problems with your
internet service provider (ISP) or any sites you are attempting access through
the VPN Service; or any electrical or other utility outages.
10.5
Dispute Resolution
(a) Any
claim or dispute (excluding claims for injunctive or other equitable relief as
set forth below) in connection with the Terms where the total amount of the
award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be
resolved in a cost effective manner through binding non-appearance-based
arbitration, at the option of the party seeking relief. Such arbitration shall
be initiated through an established alternative dispute resolution provider
(“ADR Provider”) that offers arbitration as set forth in this section and under
the rules of such ADR Provider, except to the extent such rules are in conflict
with the Terms. The party demanding arbitration will propose an ADR Provider
and the other party shall not unreasonably withhold consent to use such ADR
Provider. The ADR Provider and the parties must comply with the following
rules: (1) the arbitration shall be conducted by telephone, online and/or be
solely based on written submissions, the specific manner shall be chosen by the
party initiating the arbitration; (2) all arbitration proceedings shall be held
in English; (3) the arbitration shall not involve any personal appearance by
the parties or witnesses unless otherwise mutually agreed to by the parties;
and (4) any judgment on the award rendered by the arbitrator may be entered in
any court of competent jurisdiction. Each party shall bear its own costs
(including attorney fees) and disbursements arising out of the arbitration, and
shall pay an equal share of the fees and costs of the ADR Provider.
Notwithstanding the foregoing, MY STORE may seek injunctive or other equitable
relief to protect its intellectual property rights in any court of competent
jurisdiction. Please note that the laws of the jurisdiction where you are
located may be different from California law, including the laws governing what
can legally be sold, bought, exported, offered or imported. You shall always
comply with all the international and domestic laws, ordinances, regulations
and statutes that are applicable to your use of the MY STORE Properties.
(b) Any
other dispute (including whether the claims asserted are arbitrable) shall be
referred to and finally determined by binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state
arbitration law. The arbitration shall be conducted before one commercial
arbitrator with substantial experience in resolving commercial contract
disputes from the American Arbitration Association (“AAA”). As modified by the
Terms, and unless otherwise agreed upon by the parties in writing, the
arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if
the arbitrator deems them applicable, the Supplementary Procedures for Consumer
Related Disputes (collectively “Rules and Procedures”).
(c) You
are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights
EXCEPT for matters that may be taken to small claims court. Your rights will be
determined
by a
NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING,
BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES
APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order
and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You
and MY STORE must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU
OR MY STORE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING;
(ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT
OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND
MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate
that the costs of arbitration will be prohibitive as compared to costs of
litigation, MY STORE will pay as much of your filing and hearing fees in
connection with the arbitration as the arbitrator deems necessary to prevent
the arbitration from being cost-prohibitive as compared to the cost of
litigation; (iv) MY STORE also reserves the right in its sole and exclusive
discretion to assume responsibility for all of the costs of the arbitration;
(v) the arbitrator shall honor claims of privilege and privacy recognized at
law; (vi) the arbitration shall be confidential, and neither you nor we may
disclose the existence, content or results of any arbitration, except as may be
required by law or for the purposes of enforcement of the arbitration award;
(vii) the arbitrator may award any individual relief or individual remedies
that are permitted by applicable law; and (viii) each side pays its own
attorneys’ fees and expenses unless there is a statutory provision that
requires the prevailing party to be paid its fees and litigation expenses, and
then in such instance, the fees and costs awarded shall be determined by
applicable law.
(e) The
arbitral proceedings, and all pleadings and written evidence will be in the
English language. Any written evidence originally in a language other than
English will be submitted in English translation accompanied by the original or
true copy thereof. The English language version will control. The arbitrator
shall issue a written award and statement of decision describing the essential
findings and conclusions on which the award is based, including the calculation
of any damages awarded. The arbitrator will not have authority to award damages
in excess of the amount, or other than the types, allowed by Section 8 of the
Terms. Judgment on the award of the arbitrator may be entered by any court of
competent jurisdiction. The arbitrator also shall be authorized to grant any
temporary, preliminary or permanent equitable remedy or relief it deems just
and equitable and within the scope of the Terms, including, without limitation,
an injunction or order for specific performance. The arbitration award shall be
final and binding upon the parties without appeal or review except as permitted
by California law or United States federal law.Notwithstanding the foregoing,
either you or MY STORE may bring an individual action in small claims court.
Further, claims of defamation, violation of the Computer Fraud and Abuse Act,
and infringement or misappropriation of the other party’s patent, copyright,
trademark, or trade secret shall not be subject to this arbitration agreement.
Such claims shall be exclusively brought in the state or federal courts located
in San Francisco County, California. Additionally, notwithstanding this
agreement to arbitrate, either party may seek emergency equitable relief before
the state or federal courts located in San Francisco County, California, in
order to maintain the status quo pending arbitration, and hereby agree to
submit to the exclusive personal jurisdiction of the courts located within San
Francisco County, California for such purpose. A request for interim measures
shall not be deemed a waiver of the right to arbitrate.
(f) With
the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective
basis), if any part of this arbitration provision is deemed to be invalid,
unenforceable, or illegal, or otherwise con
balance of
this arbitration provision shall remain in effect and shall be construed in
accordance with its terms as if the invalid, unenforceable, illegal or
conflicting provision were not contained herein. If, however, either (d)(i) or
(ii) is found to be invalid, unenforceable or illegal, then the entirety of
this arbitration provision shall be null and void, and neither you nor MY STORE
shall be entitled to arbitration. If for any reason, a claim proceeds in court
rather than in arbitration, the dispute shall be exclusively brought in state
or federal court in San Francisco County, California. By using the MY STORE
Properties in any manner, you agree to the above arbitration provision.
For more
information on AAA, its Rules and Procedures, and how to file an arbitration
claim, you may call AAA at 800-778-7879 or visit the AAA website at
http://www.adr.org.
10.6
Choice of Law and Venue.
The Terms
and any action related thereto will be governed and interpreted by and under
the laws of the State of California, without giving effect to any conflict of
laws principles that require the application of the law of a different state.
You hereby expressly agree to the personal jurisdiction and venue in the state
and federal courts for the county in which MY STORE’s principal place of
business is located for any lawsuit filed against you by MY STORE arising from
or related to the Terms.
10.7
Notice.
Where MY
STORE requires that you provide an e-mail address, you are responsible for
providing MY STORE with your most current e-mail address. In the event that the
last e-mail address you provided to MY STORE is not valid, or for any reason is
not capable of delivering to you any notices required/permitted by the Terms,
MY STORE’s dispatch of the e-mail containing such notice will nonetheless
constitute effective notice. You may give notice to MY STORE at the following
address: 178 Castro St., San Francisco, CA 94114. Such notice shall be deemed
given when received by MY STORE by letter delivered by nationally recognized
overnight delivery service or first class postage prepaid mail at the above
address.
10.8
Waiver.
Any waiver
or failure to enforce any provision of the Terms on one occasion will not be
deemed a waiver of any other provision or of such provision on any other
occasion.
10.9
Severability.
If any
provision of the Terms is, for any reason, held to be invalid or unenforceable,
the other provisions of the Terms will remain enforceable, and the invalid or
unenforceable provision will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law.
10.10 App
Stores.
You
acknowledge and agree that the availability of the Application and the Services
is dependent on the third party from whom you received the Application license,
e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and
agree that the Terms are between you and MY STORE only, and not with the App
Store. MY STORE, not the App Store, is solely responsible for the MY STORE
Properties, including the Application, the contents thereof, maintenance,
support services, and warranty therefor, and addressing any claims relating thereto
(e.g., product liability, legal compliance or intellectual property
infringement). In order to use the Application, you must have access to a
wireless network, and you agree to pay all fees associated with such access.
You also agree to pay all fees (if any) charged by the App Store in connection
with the MY STORE
Properties,
including the Application. You agree to comply with, and your license to use
the Application is conditioned upon your compliance with, all applicable third-
party terms of agreement (e.g., the App Store’s terms and policies) when using
the MY STORE Properties, including the Application. You acknowledge that the
App Store (and its subsidiaries) are third-party beneficiaries of the Terms and
will have the right to enforce them.
10.11
Accessing and Download the Application from iTunes.
The
following applies to any App Store Sourced Application accessed through or
downloaded from the Apple App Store:
(a) You
acknowledge and agree that (i) the Terms are concluded between you and MY STORE
only, and not Apple, and (ii) MY STORE, not Apple, is solely responsible for
the App Store Sourced Application and content thereof. Your use of the App
Store Sourced Application must comply with the App Store Terms of
Service.
(b) You
acknowledge that Apple has no obligation whatsoever to furnish any maintenance
and support services with respect to the App Store Sourced Application.
(c) In the
event of any failure of the App Store Sourced Application to conform to any
applicable warranty, you may notify Apple, and Apple will refund the purchase
price for the App Store Sourced Application to you and to the maximum extent
permitted by applicable law, Apple will have no other warranty obligation
whatsoever with respect to the App Store Sourced Application. As between MY
STORE and Apple, any other claims, losses, liabilities, damages, costs or
expenses attributable to any failure to conform to any warranty will be the
sole responsibility of MY STORE.
(d) You
and MY STORE acknowledge that, as between MY STORE and Apple, Apple is not
responsible for addressing any claims you have or any claims of any third party
relating to the App Store Sourced Application or your possession and use of the
App Store Sourced Application, including, but not limited to: (i) product
liability claims; (ii) any claim that the App Store Sourced Application fails
to conform to any applicable legal or regulatory requirement; and (iii) claims
arising under consumer protection or similar legislation.
(e) You
and MY STORE acknowledge that, in the event of any third party claim that the
App Store Sourced Application or your possession and use of that App Store
Sourced Application infringes that third party’s intellectual property rights,
as between MY STORE and Apple, MY STORE, not Apple, will be solely responsible
for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim to the extent required by the
Terms.
(f) You
and MY STORE acknowledge and agree that Apple, and Apple’s subsidiaries, are
third party beneficiaries of the Terms as related to your license of the App
Store Sourced Application, and that, upon your acceptance of the terms and
conditions of the Terms, Apple will have the right (and will be deemed to have
accepted the right) to enforce the Terms as related to your license of the App
Store Sourced Application against you as a third party beneficiary
thereof.
(g)
Without limiting any other terms of the Terms, you must comply with all
applicable third party terms of agreement when using the App Store Sourced
Application.
10.12
Export Control.
You may
not use, export, import, or transfer the MY STORE Properties except as
authorized by U.S. law, the laws of the jurisdiction in which you obtained the
MY STORE Properties, and any other applicable laws. In particular, but without
limitation, the MY STORE Properties may not be exported or re-exported (a) into
any United States embargoed countries, or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the U.S. Department of
Commerce’s Denied Person’s List or Entity List. By using the MY STORE
Properties, you represent and warrant that (i) 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 (ii) you are not
listed on any U.S. Government list of prohibited or restricted parties. You
also will not use the MY STORE Properties for any purpose prohibited by U.S.
law, including the development, design, manufacture or production of missiles,
nuclear, chemical or biological weapons. You acknowledge and agree that
products, services or technology provided by MY STORE are subject to the export
control laws and regulations of the United States. You shall comply with these
laws and regulations and shall not, without prior U.S. government
authorization, export, re-export, or transfer the MY STORE products, services
or technology, either directly or indirectly, to any country in violation of
such laws and regulations..
10.13
International Users.
The MY
STORE Properties can be accessed from countries around the world and may
contain references to Services and Content that are not available in your
country. These references do not imply that MY STORE intends to announce such
Services or Content in your country. The MY STORE Properties are controlled and
offered by MY STORE from its facilities in the United States of America. MY
STORE makes no representations that MY STORE Properties are appropriate or
available for use in other locations. Those who access or use the MY STORE
Properties from other jurisdictions do so at their own volition and are
responsible for compliance with local law.
10.14
Questions, Complaints, and Claims.
If you
have any questions, complaints or claims, please contact us. We will do our
best to address your concerns. If you feel that your concerns have been
addressed incompletely, we invite you to let us know for further
investigation.
10.15
Consumer Complaints.
In
accordance with California Civil Code §1789.3, you may report complaints to the
Complaint Assistance Unit of the Division of Consumer Service of the California
Department of Consumer Affairs by contacting them in writing at 400 R Street,
Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.16
Entire Agreement.
The Terms
are the final, complete and exclusive agreement of the parties with respect to
the subject matter hereof and supersedes and merges all prior discussions
between the parties with respect to such subject matter