Last Updated: June 19, 2015
You acknowledge and agree that, as provided in greater detail in these Terms:
- the App is licensed, not sold to you, and you may access and use the Service only as set forth in these Terms;
- your access and use of the Services requires you to provide Shoppin with your mobile phone number for account creation;
- your access and use of the Services may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the "Carrier") and any Service Provider (as defined below), which are your sole responsibility;
- you may use the Services to connect with merchants and online stores to purchase items you see on the Services, but you must buy such products or services through those third party merchants and stores and Shoppin is not responsible for any such sale and does not conduct any sales through the Services;
- the Services are provided "as is" without warranties of any kind and Shoppin's liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THESE TERMS, YOU AND SHOPPIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (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 and your claims cannot be brought as a class action. Please review the arbitration agreement in Section 18 below for the details regarding your agreement to arbitrate any disputes with Shoppin;
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Special Terms Regarding Apple” in Section 22 below.
The Services provide you with access to a wide range of content, such as news apps, magazines, or shopping networks, which you can add to your Chatfly home page as "apps" you follow. You can use the apps within the App to chat with your friends and you and your friends can draw from the content in your apps to facilitate the exchange of ideas and information. Some apps within the App will make it possible for you to connect with merchants in order to shop.
- ACCOUNTS AND REGISTRATION:
a. To access most features of the Services, you must provide your mobile telephone number, which we may use to identify you in connection with the Services and to provide you with the Services. As noted above, we will also use your telephone number in connection with account creation, when we send you a text or a voice call with your account confirmation code. You may also 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 and that you will keep it accurate and up-to-date at all times. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
b. Third Party Accounts. In order to download the App, you may be required by third parties who are providing services in connection with the App, such as Apple, Inc. (each, a "Service Provider") to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Service Provider. Your access and use of any account with a Service Provider, including in connection with the Services, is subject to any terms, conditions, and policies, including privacy policies, of that Service Provider. Shoppin is not responsible for any act or omission of any Service Provider.
- LICENSE TO THE APP:
Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms (including without limitation payment of any applicable fees and compliance with all license restrictions), Shoppin grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Shoppin or from a legitimate marketplace (such as the Apple App Store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (2) permission to access and use the Services, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Services. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Services for any purpose other than a purpose for which the App and the Services are expressly designed. The term "App," as used herein, includes any update or modification to the App made available to you by Shoppin (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Services, you may not use them.
The Services are protected by copyright, trademark, and other US and foreign intellectual property and proprietary laws. These Terms don't grant you any right, title or interest in the Services, others" content in the Services, Shoppin trademarks, logos and other brand features. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, App(s), services, and all other elements of the Services (the "Materials") provided by Shoppin are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Services are the property of Shoppin or our third-party licensors or other third party content providers. Except as expressly authorized by Shoppin, you may not make use of the Materials. Shoppin reserves all rights to the Materials not granted expressly in these Terms.
- Access to the Services; Third Party Fees:
Shoppin does not provide you with the equipment to access or use the Services. In order to protect our users from abuse, we may ask you to prove that you are not a robot before you are able to create or sign in to accounts on the Services by entering into the App a code sent to you via text message or by requiring you to dial a particular phone number and provide a code. The cost of your text or voice call will vary depending on your plan and provider, but will likely be your standard text message and call charges. You are responsible for all fees charged by third parties to access and use the Services (e.g., carrier service charges or subscription fees by news channels). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any service plan you use in connection with your access and use of the Services (such as subscription fees, voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Shoppin immediately to suspend services.
- Your Content & Your Permissions:
a. When you use the Services, you provide us access to assets like your photos (including any edits or comments you insert into any of your photos), your activities on the App, the date you used the App and other similar information and content ("Your Content"). These Terms don't give us any rights to Your Content except for the limited rights that enable us to offer the Services. You retain ownership in Your Content that you post to the Services.
b. Limited License Grant to Shoppin. By posting or publishing Your Content, you grant Shoppin a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of Your Content by Shoppin may be without any compensation paid to you.
c. Your Content Representations and Warranties. You are solely responsible for Your Content and the consequences of posting or publishing Your Content. By posting and publishing Your Content, you affirm, represent, and warrant that:
i. You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Shoppin and users of the Services to use and distribute Your Content as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by Shoppin and these Terms; and
ii. Your Content, and use of Your Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
d. Your Content Disclaimer. We are under no obligation to edit or control Your Content, and will not be in any way responsible or liable for Your Content. Shoppin may, however, at any time and without prior notice, screen, remove, edit, or block any of Your Content that in our sole judgment violates these Terms or is otherwise objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Shoppin with respect to Your Content. We expressly disclaim any and all liability in connection with Your Content. If notified by a user or content owner that Your Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove such content, which we reserve the right to do at any time and without notice. For clarity, Shoppin does not permit copyright infringing activities on the Services.
- Communication Features:
6.1 General. Shoppin may provide facilities through which you may communicate with other users via chat or commenting on items displayed through the Services (collectively, the "Communication Features"). Your use of Communication Features is a privilege, not a right, and Shoppin may terminate your use of the Services, including the Communication Features, at any time and for any reason, without any liability to such User. The Communication Features were not intended to be used for harmful, obscene, or offensive communications and Shoppin reserves the right to monitor, edit, pre-screen, and delete messages sent through the Communication Features, although nothing herein requires Shoppin to monitor, edit or delete such messages.
6.2 Messages. The Services may allow you to send messages ("Messages") to other users of the Services as part of the Communication Features. Sending Messages is a privilege, not a right, and Shoppin may terminate such privileges of any user at any time and for any reason, without any liability to such user. Harmful, obscene, or offensive communications are not welcome in any Messages. If a user sends you an objectionable Message, then please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree to take reasonable precautions in all interactions with other users, particularly if you decide to communicate with another user offline or meet them in person. You agree that Shoppin may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Services and for such other purpose as Shoppin may deem appropriate in its sole discretion. Shoppin does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any Messages conveyed through the Communication Features. The opinions expressed in Messages conveyed through the Communication Features are to be attributed solely to the person or entity that Submitted such message. Any reliance you place on material or information set forth in Messages sent via the Communication Features will be at your own risk.
6.3 Message Guidelines. Please be mindful of Your Content you send in a Message. Shoppin reserves the right to (a) remove Your Content or a Message and escalate to law enforcement if it perceives a genuine risk of physical harm, or a direct threat to public safety; (b) remove any promotion or encouragement of self-mutilation, eating disorders or drug abuse; (c) take action on any report of abusive behavior directed at individuals, including any cyber bullying; (d) remove any Your Content or a Message attacking others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, medical condition, or any other protected category of any State of the United States; (e) remove any graphic content shared for sadistic pleasure; (f) impose limitations on the display of nudity, and (g) submit the personal information or include it in a Message of others without their consent. If you see something on the Services that you believe violates these Terms, please report it to us by e-mailing email@example.com. Please remember that reporting a Message does not guarantee Shoppin will remove it from the Services. The Services are comprised of diverse individuals and it is possible that something could be disagreeable or disturbing to you without meeting our criteria for removal. You may always choose to not view any Message that offends you.
- Third Party Websites; Purchases of Goods:
b. Purchases of Goods. We may provide links to Third Party Websites through the App or the Services where such Third Party Websites offer to sell you products or services, either through your device"s native browser or through a browser shell that enables you to access the Third Party Websites. Any purchases made, and payment information provided, occurs between you and the owners or operators of such Third Party Websites. Shoppin does not collect or process payment information, and assumes no responsibility and shall not be liable for any data loss, theft, or unauthorized access resulting from your purchases of products or services through Third Party Websites. Your access to and use of any such Third Party Websites is subject to the limitations and restrictions explained in Section 7.a above.
You agree not to misuse the Services. For example, you must not do or attempt to do the following:
breach or otherwise circumvent any security or authentication measures, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that such activity is expressly permitted by applicable law;
access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven't been invited to;
interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
send unsolicited communications, promotions or advertisements, or spam;
send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
promote or advertise products or services other than your own without appropriate authorization
abuse the Services to manipulate third party hosting services linked to the Chatfly app;
sell the Services or Services accounts via unauthorized channels;
use automated or other means to create accounts in bulk or to access the Services other than by using our official interface;
interfere with the operation of the Services or any user's enjoyment of the Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Services accounts of others without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted by these Terms or any Materials or any right or ability to view, access, or use any Materials;
publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights; or
violate the law or use the Services for any illegal purpose in any way including storing, publishing or sharing material that's fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.
- Third-Party Services and Linked Websites: Shoppin may provide tools through the Services that enable you to export information, including Your Content, to third party services, including through features that allow you to link your account on Shoppin with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like" or "share" buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Services may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
- Feedback: If you provide feedback to Shoppin regarding the Services ("Feedback"), you acknowledge that the Feedback is not confidential and you authorize Shoppin to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Shoppin a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
b. Additional Terms. Your access and use of the Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to on the Services (the "Additional Terms"), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 13 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
c. Automatic Updates. The Shoppin Services may communicate with Shoppin servers from time to time to check for available updates to the software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing the Shoppin software, you agree to automatically request and receive Updates.
- Copyright: We ask that you respect the intellectual property of others. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported to our designated agent. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:
1190 Saratoga Avenue, Suite 240
San Jose, CA 94107
- Modification of these Terms: We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose.
- Termination: You're free to stop using our Services at any time by uninstalling the App. We also reserve the right to suspend or end the Services at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Services if you're not complying with these Terms, or use the Services in a manner that would cause us legal liability, disrupt the Services or disrupt others' use of the Services. We will provide you with notice via the email address associated with your account before we terminate your account.
- Indemnification: You agree that you will be responsible for your use of the Services, and you agree to defend, indemnify, and hold harmless Shoppin and its affiliates and their respective officers, directors, employees, consultants, Service Providers and agents (collectively, the "Shoppin Entities") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues 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 (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
- Disclaimer: We strive to provide great Services, but there are certain things that we can't guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SHOPPIN ENTITIES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES AND ALL MATERIALS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SHOPPIN ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE SHOPPIN ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND YOU USE, ACCESS, DOWNLOAD, PROCESS, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE, AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND SHOPPIN, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- Limitation of Liability: IN NO EVENT WILL THE SHOPPIN’S ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SHOPPINENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL SHOPPIN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. 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 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Resolving Disputes By Arbitration:
a. Before filing a claim against Shoppin, you agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Shoppin may bring a formal proceeding. You agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under 18.a.iii.
i. Arbitration Procedures. Any arbitration between you and Shoppin will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Shoppin. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Shoppin's address for Notice is: Shoppin LLC., 1190 Saratoga Avenue, Suite 240, San Jose, CA 94107. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Shoppin may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Shoppin must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Shoppin will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Shoppin in settlement of the dispute prior to the arbitrator"s award; or (c) $1,000.00, whichever is greater.
ii. Arbitration Fees and Incentives. If you commence arbitration in accordance with these Terms, Shoppin will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your 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 AAA Rules. In such case, you agree to reimburse Shoppin for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator"s ruling on the merits.
iii. Exceptions to Agreement to Arbitrate. Notwithstanding Section 18.a, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
b. No Class Actions. YOU AND SHOPPIN 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 Shoppin 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.
c. If Shoppin makes any future change to this arbitration provision (other than a change to Shoppin's address for Notice), you may reject any such change by sending us written notice within 30 days of the change, in which case your account with Shoppin will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
d. Enforceability. If Section 18.a is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
- Controlling Law: These Terms are governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Shoppin agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Waiver, Severability & Assignment: Shoppin's failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Shoppin may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
- Special Terms Regarding Apple: If you are downloaded the App from the Apple, Inc. ("Apple") App Store or if you are using the App on an iOS-based device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. Your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. These Terms are between you and Shoppin only, not with Apple, and Apple is not responsible for the Services and the content thereof. These Terms are not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for "Licensed Applications" in, or that otherwise conflict with, the Apple, Inc. App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) 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 Services and/or your possession and use of the App infringe that third party"s intellectual property rights. You hereby 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 agree to comply with any applicable third party terms when using the Services. 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.
EXPORT RESTRICTIONS: The Shoppin Services are subject to United States export controls. By using the Shoppin Services, you agree to use the software only for purposes that are legal, proper and in accordance with these Terms. Specifically, you agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, and trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control.