Terms of Service ADA
Last Updated: February 9, 2021
Please note the arbitration provision set forth in Section 15, requiring you to arbitrate any claims you may have against us on an individual basis.
ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
1. THIS AGREEMENT.
1.1 Acceptance. Please read this Agreement carefully before accessing the Website. In order to use the Website, you must first agree to be bound by the terms and conditions set forth in this Agreement. By accessing the Website, Visitors indicate that they have read, understood and agree to be bound by the terms and conditions set forth in this Agreement. Registrants indicate that they have read, understood and agree to be bound by the terms and conditions set forth in this Agreement by means of a click-through consent, where provided by MBX. If you do not agree to be bound by this Agreement, you are not authorized to use the Website. Furthermore, you are not authorized to use the Website if (i) you are under the age of 13, or (ii) you are a person barred from using the Website either (a) under the laws of the country in which you reside or from which you are attempting to access the Website, or (b) due to prior violations of this Agreement. If you are 13 years of age or older but under legal age, you may use this Website only with involvement and consent of your parent or guardian.
1.2 Modification. We reserve the right to modify this Agreement at any time for any reason and without notice to you, other than the posting of the amended Agreement on this site. You shall periodically review this Agreement to be aware of such modifications. You further agree that your continued use of the Website after any such modifications have been made shall be deemed to be your conclusive acceptance of any modified version of this Agreement.
2.1 Profile; Password. You will only be able to use certain functionality of the Website if you register with us. If you decide to register with us, you will receive a user ID and password ("Profile") to access your Registrant account ("Account"). You shall not allow any third party to use your Profile or Account to access the Website and you shall strictly safeguard all information that would enable any individual or entity to access the Website by using your Profile. You are fully responsible for your failure to safeguard information and/or to permit any other person to access or use the Website using your Profile and/or Account, and for all activities that occur under your Profile and/or Account. You may not sell or otherwise transfer your Profile or Account or any portion thereof. You shall notify MBX immediately of any unauthorized use of your Profile or Account or any other unauthorized use of the Website.
2.2 Accurate Information. You shall provide us with accurate, complete and current information about yourself during registration and at all other times, and you shall update all information provided to us or requested by us if and as soon as such information changes.
2.3 Suspension or Cancellation of Account. We have the right to suspend or cancel your Account and/or registration if we believe you have violated this Agreement. If we suspend or cancel access to your Account, you may be prevented from accessing the Website (temporarily or permanently), your Account details and/or any files or other various Website materials, including all text, comments, icons, images, messages, tags, links, photographs, audio, video and other content (collectively, "Content") that are contained in or accessible through your Account, all of which may be deleted by us. Such suspension or cancellation of your Account will mean that you may lose access to all Content submitted by you.
2.4 Cessation of Services. The form and nature of the products or services offered through the Website may change from time to time without prior notice to you. As part of our continuing innovation, MBX may stop (permanently or temporarily) providing certain Website features to you at our sole discretion, without prior notice to you.
3.1 Products. Various of our products are offered for sale through the Website. If you wish to purchase any of these products, you will be asked by MBX or an authorized third party on MBX’s behalf to supply certain information to us or to an agent, including your full name, address and credit card information. MBX is not responsible for processing any payments made through the Website, and MBX does not have access to your credit card information. This information is maintained by a third party. You shall provide MBX or any third party acting as our agent with accurate, complete and current information at all times, and to comply with the terms and conditions of any ancillary agreement that you may enter into that governs your purchase of any product.
3.2 Payments. Your right to any product that is available for purchase through the Website is conditional on our receipt of the appropriate full payment and related costs for such product. If such payment and costs cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to cancel your order. If we suspect that a fraudulent transaction has been initiated from your Account, we reserve the right to suspend or cancel your Account. You are responsible for all charges made under your Account.
3.3 Taxes. You are responsible for paying all applicable taxes arising out of any purchase made under your Account or otherwise made by you.
3.4 Shipping. Please review our shipping rates at https://otzi.co/pages/shipping-returns.
3.5 Product Descriptions. We attempt to be as accurate as possible in describing products (including pricing) offered for purchase through the Website; however, we do not warrant or represent that all such descriptions are complete, current or error-free. If we have shipped to you a product that you purchased through the Website and you determine that such product was not accurately described or depicted on the Website, you may return such product to us provided that such return is made within the terms of our Return Policy, available at: https://otzi.co/pages/shipping-returns. If we determine that a product that you purchased through the Website was not accurately described or depicted on the Website, we reserve the right to cancel or refuse your order before shipment. We will, if practical, notify you of our reasons for cancelling or refusing the order through the email and/or billing address/phone number provided at the time the order was made. We change our product descriptions and pricing from time to time, so you must check these details before ordering from us.
3.6 Product Availability; Bulk Sales. We cannot guarantee product availability. From time to time, MBX may have to cancel or refuse an order placed by you. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. We will, if practical, notify you of our reasons for cancelling or refusing the order through the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
3.7 Returns. If you have purchased and received a product offered through the Website that you wish to return to us, you must adhere to our Return Policy: https://otzi.co/pages/shipping-returns. If there is any failure, delay or interruption with respect to the delivery of our products ordered by you through the Website, you may request that your order be cancelled and that we provide a refund for such products. If an order has already been fulfilled, we will not be able to cancel that order and you may request a refund subject to our Return Policy.
4. INTELLECTUAL PROPERTY.
4.1 Copyright. Registrants may post content, such as reviews, photographs, videos, or other materials on the Website (“User-Generated Content”). By creating or making available any User-Generated Content through the Website, you hereby grant to MBX a worldwide, irrevocable, perpetual, non-exclusive, fully-transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User-Generated Content. This license will not be terminated if you close your Account. MBX does not claim any ownership rights in any User-Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User-Generated Content. Notwithstanding the foregoing, MBX has the right, but not the obligation, to remove any material, including User-Generated Content, whether or not such material has been modified by you, solely at its own discretion.
You acknowledge and agree that you are solely responsible for all User-Generated Content that you make available through the Website. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User-Generated Content that you make available through the Website, or you have all rights, licenses, consents and releases that are necessary to grant to MBX the rights in such User-Generated Content, as contemplated under this Agreement; and (ii) neither the User-Generated Content nor your posting, uploading, publication, submission or transmittal of the User-Generated Content or MBX’s use of the User-Generated Content (or any portion thereof), will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
MBX (or in some cases, a third party) retains ownership of all intellectual property on the Website other than User-Generated Content, including, but not limited to, visual interfaces, graphics, design, compilation, computer code, software, and aggregate user review ratings.
You may print copies of materials on the Website for your personal, noncommercial use only, provided that (a) you must keep intact all copyright, trademark, and other proprietary notices appearing therein and (b) you use such materials solely in the manner permitted by this Agreement and not in any manner that competes with us.
4.2 Digital Millennium Copyright Act. MBX respects the intellectual property rights of others. If you believe that your work (or the work of a third party on whose behalf you are entitled to act) has been copied, used, or made available on or through the Website in a way that constitutes an infringement of your copyright rights, please provide our copyright agent with a copyright infringement notice (“Notice”), which should include the following written information:
- a statement that you have identified material on the Website that infringes your copyright (or infringes the copyright of a third party on whose behalf you are entitled to act, if applicable);
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are at issue, a representative list of such works;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MBX to locate the material (e.g., a URL and/or screen shot);
- your full name, email address, postal address, and telephone number through which you can be contacted;
- a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a statement by you that the information in the Notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and
- a physical or electronic signature (which may be a scanned copy) of a person authorized to act on behalf of the owner of the work that is allegedly infringed.
MBX’s agent for notice of claims of copyright infringement on or regarding the Website can be reached as follows:
If you are unsure about your rights with respect to any content on the Website, or whether there has been an infringement of your rights, we suggest you obtain legal advice before sending a Notice to MBX.
4.3 Trademarks. The trademarks "OTZI", the OTZI logo, “MBX”, the MBX logo, and all names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, trade dress, and service names appearing on the Website and which indicate a source of goods or services (collectively, the "Trademarks") belong exclusively to MBX or to our licensors, sponsors, suppliers or other third parties, as indicated. Trademarks are protected by the trademark laws of the United States and other applicable jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademark in any way, including distributing Content for advertising or publicity or otherwise, without our prior written consent or the consent of such third party Trademark holder, as applicable.
5. USAGE RESTRICTIONS.
6. THIRD PARTY LINKS & WEBSITES.
The Website provides links to third party websites that we believe may be of possible interest to you. Because we do not endorse or otherwise have control over such websites, we are not responsible or liable, directly or indirectly, for (i) the availability of such websites, (ii) any content, data, text, software, music, sound, photographs, video, messages, tags, links, advertising, services, products, or other materials on or available from such websites, (iii) your participation, correspondence or business dealings with any third party found on or through the Website regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, which are solely between you and any such third party, or (iv) any damage or loss caused or alleged to be caused by or in connection with your interaction with any such third party including, without limitation, damages caused by computer viruses, Trojan horses or other destructive/disruptive code which may be downloaded from such linked websites. Your use of any website linked to from the Website is subject to the policies and procedures of the owner of such website, and your use of all such websites is subject to such policies and procedures and not to the terms and conditions of this Agreement. You understand that by using any third party website linked to from the Website, you may be exposed to content or other materials that are offensive, indecent, defamatory or otherwise objectionable.
7. LINKING TO THIS WEBSITE & FRAMING.
Creating or maintaining any link from another website to any page on this Website without MBX’s prior written permission is prohibited. Running or displaying this Website or any material displayed on this Website in frames or through similar means on another website without MBX’s prior written permission is also prohibited. Any permitted links to this Website must comply with all applicable laws, rules and regulations.
8. DISCLAIMER OF WARRANTIES.
THIS WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE ARE PROVIDED BY MBX ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. MBX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON, SOLD OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK. MBX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MBX DOES NOT WARRANT THAT THE SITE; INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON, SOLD OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE; SERVERS ON WHICH THE SITE OPERATES; OR EMAIL SENT FROM MBX, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9. LIMITATION OF LIABILITY.
MBX WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, COSTS OF COVER, LOSS OF BUSINESS, OR ANY SIMILAR OR OTHER DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD-PARTY. WITH REGARD TO YOUR PURCHASE OF MERCHANDISE FROM THIS SITE, TO THE FULLEST EXTENT PERMITTED BY LAW, MBX’S SOLE AND EXCLUSIVE LIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR SUCH PURCHASE. THE AFOREMENTIONED LIMITATIONS OF LIABILITY SHALL APPLY TO ANY LOSS OR DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF MBX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY OF THE LIMITED REMEDIES HEREUNDER FAIL THEIR ESSENTIAL PURPOSE.SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE EXCLUSIONS OR LIMITATIONS IN THIS SECTION ABOVE MAY NOT APPLY TO YOU. NOTE THAT THE LIMITATIONS IN THIS SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
10. REPRESENTATIONS AND WARRANTIES.
You will indemnify and hold us (and our affiliates, subsidiaries, related entities, and our and their respective officers, directors, employees, and agents) harmless from all claims, demands, liabilities, damages, losses, and expenses, including but not limited to reasonable legal fees, due to or arising out of your breach of this Agreement, your use of the Website, or your breach of any law or the rights of a third party, including the violation of any third party’s intellectual property rights.
13. NO ENDORSEMENT.
Unless otherwise noted, MBX is neither affiliated with, nor sponsored or endorsed by, any specific product, service, methodology or person. The owners of any third party trademark or copyright appearing on the Website are not sponsors of MBX, OTZI, or the Website and have not endorsed and are not affiliated with MBX, OTZI, or the Website, and MBX is not a sponsor and does not endorse any such third parties, unless otherwise noted.
14. NO AGENCY.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and MBX by this Agreement.
15. AGREEMENT TO ARBITRATE.
By visiting the Website or otherwise making a purchase from the Website, you and MBX agree that, if there is any controversy, claim, action or dispute arising out of or related to any transaction conducted on the Website, or the breach, enforcement, interpretation, or validity of this Agreement or any part of it ("Dispute"), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent: (1) to WeWork c/o Hyungseok Ha, Memebox Corporation, 400 Concar Dr, 03-140, San Mateo, CA 94402, or (2) to you at: your address in your online profile.
Both you and MBX agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. Notwithstanding the foregoing, MBX is not required to provide notice under this section if you are a Visitor who has not provided MBX with your address, or if you are a Registrant who has provided MBX with an inaccurate address or failed to keep your address current.
IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT SUCH DISPUTE WILL SOLELY AND EXCLUSIVELY BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS.
WAIVER OF JURY TRIAL and NO CLASS ACTION: ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
Other rights that you and we would have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such Disputes shall be exclusively submitted to Judicial Arbitration and Mediation Services, Inc. for binding arbitration under its rules then in effect in the San Francisco, CA, USA area, before one arbitrator to be mutually agreed upon by both parties. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.
OPT-OUT OF AGREEMENT TO ARBITRATE: YOU CAN DECLINE THIS AGREEMENT TO ARBITRATE by emailing MBX at firstname.lastname@example.org and providing the requested information as follows: (1) your name; (2) your address; (3) your phone number; (4) the URL of Agreement to Arbitrate Disputes; and (5) your clear statement that you wish to opt out of this arbitration provision in the Agreement. This Opt-Out Notice must be emailed no later than 30 days after the date you first accept this Agreement by using the Website.
FORUM SELECTION: For any action where the Arbitration Agreement above permits the parties to litigate in court, you further expressly agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in San Francisco County, California.
CHOICE OF LAW: To the extent not preempted by or inconsistent with federal law, the laws of the State of California will govern this Agreement and any claim, without regard to conflict of law provisions.
You shall not resell or assign your rights, duties or obligations under this Agreement, and any attempted assignment or delegation will be void and of no force or effect whatsoever. This Agreement may be automatically assigned by MBX, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limiting the foregoing, we may sell, transfer or otherwise share some or all of our assets, including your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, lender, or investor, including in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such event, the PII we have collected from you may be one of the assets transferred.
17. NO WAIVER.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to a subsequent or similar breach or breaches. If MBX does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which MBX has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of MBX’s rights, and all such rights or remedies shall still be available to MBX.
If any provision of this Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This Agreement and any ancillary terms and conditions referenced herein or included in the Website sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The provisions of this Agreement shall survive suspension or cancellation of your account to the extent necessary to carry out the obligations of you and MBX hereunder.
19. CONTACT US.
If you have any questions or concerns regarding the Website, please contact us by email at email@example.com or write to us at WeWork c/o Hyungseok Ha, Memebox Corporation, 400 Concar Dr, 03-140, San Mateo, CA 94402.
20. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
- 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 auto-dialed 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 Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
- 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 Us 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 acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Otzi and its service providers will have no liability for failing to honor such requests. 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 our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery, and sale of beauty, cosmetic & personal care. Messages may include checkout reminders.
- Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
- Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. 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.
- Our 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. We 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 service provider/network operator and is outside of Our control. Carriers are 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 a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.
- Age Restriction: You may not use or 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, service, or promotion that is unlawful where such product, service, 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.
- Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our 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 San Mateo, California 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 Memebox Corporation’s 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 THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, 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.
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 our Programs.
- Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests, and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
- Miscellaneous: You warrant and represent to Us 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. We reserve 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.