Terms and Conditions
MonDevices Terms of Use
Effective Date: February 27, 2015
Last Updated Date: January 6, 2022
Welcome to the MonDevices websites and application. The MonBaby monitor tracks your baby’s sleep position, transmitting information directly to your smartphone or other mobile device. The MonBaby monitor and the MonButton monitor are each referred to in these Terms of Use as a “Product” and collectively as the “Products.”
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF MONDEVICES, INC, ITS AFFILIATES OR AGENTS (“MONDEVICES”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, OR DOWNLOADING MONDEVICES’ MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MONDEVICES, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, THE APPLICATION, OR THE SERVICES.
THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT The Terms are subject to change by MonDevices in its sole discretion at any time. When changes are made, MonDevices will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1 below) to use the Services, 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, the Application and/or Services and 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 an Account with us 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 (defined in Section 3.1 below). MonDevices may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/or the Services 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, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Our Services. Through the Services, MonDevices provides a method for you to monitor certain movements and vital signs using the Bluetooth enabled Product and the related Wi-Fi enabled Application by collecting data, which may include data related to motions, movement level, sleep position, fall detection, activity level, orientation, rollovers, and proximity (“Body Data”) and presenting that data to you on your mobile device and on our Website so that you can track certain types of body functions, set alerts to let you know if anything changes, and view statistics and analytics about such movements and vital signs over time. The use of Body Data by MonDevices will be subject to the terms of our Privacy Policy http://mondevices.com/privacy/. You can view and share Body Data with other people or organizations via our Services or over the web or Internet. Our Services may also include bulletin boards or other community forms where our users may share information with each other.
2. Use of the Services and Our Properties. The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (collectively, “Our Properties”) are protected by copyright laws throughout the world. Subject to the Terms, MonDevices grants you a limited license to reproduce portions of Our Properties for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by MonDevices in a separate license, your right to use any of Our Properties is subject to the Terms.
2.1 Application License. Subject to your compliance with the Terms, MonDevices grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Application on mobile devices and/or computers that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Some of the software in our Application may be offered under an open source license that we make available to you. There may be provisions in the open source license that expressly override some of the Terms, and you agree to be bound by the terms of such open source license. 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 Company Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the Terms. Subject to your compliance with the Terms, Company 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 Services in the manner permitted by the Terms.
2.3 Open Source Software. Some of the software in our Application or 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, and you agree to be bound by the terms of such open source licenses.
2.4 Updates. You understand that Our Properties are evolving. As a result, MonDevices may require you to accept updates to Our Properties that you have installed on your computer or mobile device. You acknowledge and agree that MonDevices may update Our Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use Our 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 Our Properties or any portion of Our Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other of Our Properties (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using MonDevices’ 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 Our Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use 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 web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Our Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Our Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Our Properties. Any future release, update or other addition to Our Properties shall be subject to the Terms. MonDevices, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Our Properties terminates the licenses granted by MonDevices pursuant to the Terms.
2.6 Third-Party Materials. As a part of Our Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for the MonDevices 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 Our 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 Website (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”), or has an account with the applications provider for the User’s mobile device.
3.2 Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing MonDevices to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to MonDevices and/or grant MonDevices access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating MonDevices to pay any fees or making MonDevices subject to any usage limitations imposed by such third-party service providers. By granting MonDevices access to any Third-Party Accounts, you understand that MonDevices may access, make available and store (if applicable) any Content (as defined in Section 4.1) accessible through Our Properties that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Our Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 4.2) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Our Properties. Please note that if a Third-Party Account or associated service becomes unavailable or MonDevices’ access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Our Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MONDEVICES DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. MonDevices makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and MonDevices is not responsible for any SNS Content.
3.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ 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 thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Our Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Our Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify MonDevices 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. If you provide any information that is untrue, inaccurate, not current or incomplete, or MonDevices has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MonDevices has the right to suspend or terminate your Account and refuse any and all current or future use of Our 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 or SNS at any given time. MonDevices 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 Our Properties if you have been previously removed by MonDevices, or if you have been previously banned from any of Our Properties.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Our Properties, including but not limited to, a mobile device that is suitable to connect with and use Our Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Our Properties.
4. Responsibility for Content.
4.1 Content. “Content” is defined as any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Our Properties, but specifically excludes Body Data.
4.2 Types of Content. You acknowledge that all Content, included in Our Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not MonDevices, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Our Properties (“Your Content”), and that you and other Users of Our Properties, and not MonDevices, are similarly responsible for all Content they Make Available through Our Properties (“User Content”).
4.3 No Obligation to Pre-Screen Content. You acknowledge that MonDevices has no obligation to pre-screen Content (including, but not limited to, User Content), although MonDevices reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that MonDevices pre-screens, refuses or removes any Content, you acknowledge that MonDevices will do so for MonDevices’ benefit, not yours. Without limiting the foregoing, MonDevices shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
5. Storage. Unless expressly agreed to by MonDevices in writing elsewhere, MonDevices has no responsibility or liability for the deletion or accuracy of Body Data; the failure to store, transmit or receive transmission of Body Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of Our Properties. Certain Services may enable you to specify the level at which such Services restrict access to Body Data or Your Content. You are solely responsible for applying the appropriate level of access to Body Data and Your Content. If you do not choose, the system may default to its most permissive setting. You agree that MonDevices retains the right to create reasonable limits on MonDevices’ use and storage of Body Data and Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by MonDevices in its sole discretion.
6. Ownership
6.1 Our Properties. Except with respect to Body Data, Your Content and User Content, you agree that MonDevices and its suppliers own all rights, title and interest in Our Properties (including but not limited to, any titles, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, moral rights, documentation and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Our Properties.
6.2 Trademarks. MONDEVICES, MonBaby, MonButton, and other related graphics, logos, service marks and trade names used on or in connection with Our Properties are the trademarks of MonDevices and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Our Properties are the property of their respective owners.
6.3 Other Content. Except with respect to Body Data and Your Content, you agree that you have no right or title in or to any Content or other data that appears on or in Our Properties.
6.4 Your Content. MonDevices does not claim ownership of Body Data or Your Content. However, when you as a User post or publish Your Content on or in Our Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
6.5 License to Body Data and Your Content. Subject to any applicable account settings that you select, you grant MonDevices a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Body Data and Your Content (in whole or in part) for the purposes of operating the Services and providing Our Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Body Data or Your Content that you submit to any “public” area of Our Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not MonDevices, are responsible for all of Body Data and Your Content that you Make Available on or in Our Properties.
6.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Body Data or Your Content to any forums, comments or any other area on or in Our Properties, you hereby expressly permit MonDevices to identify you by your username (which may be a pseudonym) as the contributor of Body Data or Your Content in any publication in any form, media or technology now known or later developed in connection with Body Data or Your Content.
6.7 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of MonDevices.
6.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to MonDevices through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that MonDevices has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to MonDevices a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Our Properties.
7. User Conduct. As a condition of use, you agree not to use Our 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 Our Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without MonDevices’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of MonDevices; (vi) interferes with or attempts to interfere with the proper functioning of Our Properties or uses Our Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Our Properties, including but not limited to violating or attempting to violate any security features of Our Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Our Properties, introducing viruses, worms, or similar harmful code into Our Properties, or interfering or attempting to interfere with use of Our Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Our Properties.
8. Investigations. MonDevices may, but is not obligated to, monitor or review Our Properties and Content at any time. Without limiting the foregoing, MonDevices shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although MonDevices does not generally monitor user activity occurring in connection with Our Properties, if MonDevices becomes aware of any possible violations by you of any provision of the Terms, MonDevices reserves the right to investigate such violations, and MonDevices may, at its sole discretion, immediately terminate your license to use Our Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
9. Interactions with Other Users.
9.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that MonDevices reserves the right, but has no obligation, to intercede in such disputes. You agree that MonDevices will not be responsible for any liabilities incurred as the result of such interaction.
9.2 Content Provided by Other Users. Our Properties may contain User Content provided by other Users. MonDevices is not responsible for and does not control User Content. MonDevices has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
10. Third-Party Services.
10.1 Third-Party Websites, Applications & Ads. Our Properties may contain links to third-party websites and applications (“Third-Party Websites & Applications”) and advertisements for third parties (collectively, “Third-Party Websites, Applications & Ads”). When you click on a link to a third-party website, application or ad, we will not warn you that you have left Our Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Applications & Ads are not under the control of MonDevices. MonDevices is not responsible for any Third-Party Websites, Applications & Ads. MonDevices provides these Third-Party Websites, Applications & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Applications & Ads, or their products or services. You use all links in Third-Party Websites, Applications & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
10.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and MonDevices and not with the App Store. MonDevices, not the App Store, is solely responsible for Our Properties, including the Application, the content 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 Our 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 Our 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.
10.3 Third-Party Providers. We use third-party services, including but not limited to analytics, authentication, hosting, and payment services to help us analyze how Users use Our Properties and so that Users may access Our Properties and Content. Each third-party service is restricted by the third party’s Terms of Use and Privacy Policy. By using Our Properties, you consent to such third-party services and their terms. For a full list of our third-party service providers, please contact us at support@mondevices.com.
11. Fees and Purchase Terms.
11.1 General Purpose of Agreement: 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 MonDevices’ Software, and, furthermore, any use of MonDevices’ Software by you in furtherance of the Terms will be considered merely in support of the Agreement’s purpose.
11.2 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. You must provide MonDevices or our payment card processor with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing MonDevices or our payment card processor with your credit card number or PayPal account and associated payment information, you agree that MonDevices or our payment card processor is authorized to immediately invoice your Account for all fees and charges due and payable to MonDevices hereunder and that no additional notice or consent is required. You agree to immediately notify the MonDevices or our payment card processor of any change in your billing address or the credit card or PayPal account used for payment hereunder. MonDevices reserves the right at any time to change its prices and billing methods, either immediately upon posting on Our Properties or by e-mail delivery to you.
11.3 Taxes. MonDevices’ fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to MonDevices, 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 MonDevices 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 other such 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 MonDevices is 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.
11.4 Withholding Taxes. You agree to make all payments of fees to MonDevices free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to MonDevices will be your sole responsibility, and you will provide MonDevices with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
11.5 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 205 West 57 Street, 4AA, New York, NY 10019.
12. Idemnification. You agree to indemnify and hold MonDevices, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “MonDevices Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Our Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. MonDevices reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with MonDevices in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to Our Properties.
13. Disclaimer of Warranties.
13.1 Not A Medical Device. THE SERVICES AND THE PRODUCTS ARE NOT INTENDED TO BE USED AS A MEDICAL DEVICE AND THE PRODUCTS ARE NOT MEDICAL DEVICES. FURTHERMORE, THE SERVICES AND THE PRODUCTS ARE NEITHER REGULATED NOR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION, AND ARE NOT DESIGNED TO DETECT OR PREVENT CAUSES OF SUDDEN INFANT DEATH SYNDROME (SIDS) OR ANY OTHER MEDICAL CONDITION. THE SERVICES ARE INTENDED TO BE USED WITH OUR PRODUCTS TO HELP YOU MONITOR BODY DATA AND ARE NOT A SUBSTITUTE FOR MEDICAL CARE OR ADULT SUPERVISION. YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND THE PRODUCTS IS ENTIRELY AT YOUR OWN RISK.
13.2 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PROPERTIES IS AT YOUR SOLE RISK, AND OUR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE MONDEVICES PARTIES EXPRESSLY DISCLAIM 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.
(a) THE MONDEVICES PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) OUR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF OUR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF OUR PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN OUR PROPERTIES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OUR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MONDEVICES MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MONDEVICES OR THROUGH OUR PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, MonDevices may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at MonDevices’ sole discretion. The provisions of this section apply with full force to such features or tools.
13.3. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE MONDEVICES PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MONDEVICES PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13.4 No Liability for Content. MONDEVICES DOES NOT OFFER MEDICAL ADVICE. ANY CONTENT ACCESSED THROUGH OUR PROPERITES IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE. YOU SHOULD CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.
13.5 Limited Product Warranty; Product Warnings. MonDevices provides a limited warranty for the Products which is available on the Website and included with each Product. MONDEVICES MAY INCLUDE PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF OUR PRODUCTS. AS A CONDITION TO RECEIVING SERVICES, YOU AGREE TO STRICTLY COMPLY WITH ALL PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF THE PRODUCTS AND ANY UPDATES THAT MONDEVICES PROVIDES TO YOU THROUGH THE APPLICATION (OR THROUGH EMAIL IF YOU PROVIDE MONDEVICES WITH YOUR EMAIL ADDRESS). IN ADDITION, YOU AGREE TO ONLY USE THE PRODUCTS IN A MANNER THAT COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS.
14. Limitation of Liability.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE MONDEVICES PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH OUR PROPERTIES, WHETHER OR NOT MONDEVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, RESULTING FROM: (1) THE USE OR INABILITY TO USE OUR PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH OUR PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON OUR PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO OUR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE MONDEVICES PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY MONDEVICES AS A RESULT OF YOUR USE OF OUR PROPERTIES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM. IF YOU HAVE NOT PAID MONDEVICES ANY AMOUNTS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM, MONDEVICES’ SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
14.3 User Content. THE MONDEVICES PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE BODY DATA OR ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
14.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MONDEVICES AND YOU.
15. Procedure for Making Claims of Copyright Infringement. It is MonDevices’ policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to MonDevices by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Our Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Our Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for MonDevices’ Copyright Agent for notice of claims of copyright infringement is as follows: Eugene Dotsenko, COO, 304 Park Avenue South, Suite 1035, New York, NY 10010, eugene@mondevices.com.
16. Term and Termination.
16.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Our Properties, unless terminated earlier in accordance with the Terms.
16.2 Prior Use. Notwithstanding the foregoing, if you used Our Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Our Properties (whichever is earlier) and will remain in full force and effect while you use Our Properties, unless earlier terminated in accordance with the Terms.
16.3.Termination of Services by MonDevices. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if MonDevices is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), MonDevices has the right to, immediately and without notice, suspend or terminate any Services provided to you.You agree that all terminations for cause shall be made in MonDevices’ sole discretion and that MonDevices shall not be liable to you or any third-party for any termination of your Account or any Services.
(a) If MonDevices becomes aware of any possible violations by you of the Terms, MonDevices reserves the right to investigate such violations. In the event that MonDevices determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Our Properties, MonDevices reserves the right to (i) warn you via e-mail (to any e-mail address you have provided to MonDevices) that you have violated the Terms; (ii) delete any of Your Content provided by you or your agent(s) to Our Properties; (iii) discontinue your registration(s) with any of Our Properties, including the Services or any MonDevices community; (iv) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (v) pursue any other action which MonDevices deems to be appropriate. If, as a result of the investigation, MonDevices believes that criminal activity has occurred, MonDevices reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. MonDevices is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Our Properties, including Your Content, in MonDevices’ possession in connection with your use of Our Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms; (iii) respond to any claims that Your Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of MonDevices, its Users or the public, and all enforcement or other government officials, as MonDevices in its sole discretion believes to be necessary or appropriate.
(b) If your Account is terminated by MonDevices due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Our Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, MonDevices 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.
(c) You agree that all terminations for cause shall be made in MonDevices’ sole discretion and that MonDevices shall not be liable to you or any third-party for any termination of your Account.
16.4 Termination of Services by You. If you want to terminate the Services provided by MonDevices, you may do so by (a) notifying MonDevices at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to MonDevices’ address set forth below.
16.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. MonDevices will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
17. International Users. This Website can be accessed from countries around the world and may contain references to Our Properties and Content that are not available in your country. These references do not imply that MonDevices intends to announce Our Properties or Content in your country. Our Properties are controlled and offered by MonDevices from its facilities in the United States of America. MonDevices makes no representations that Our Properties are appropriate or available for use in other locations. Those who access or use Our Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
18. General Provisions.
18.1 Electronic Communications. The communications between you and the MonDevices use electronic means, whether you visit Our Properties or send MonDevices e-mails, or whether MonDevices posts notices on Our Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from MonDevices in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that MonDevices 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.
18.2 Release. You hereby release the MonDevices Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services or any other of Our Properties. 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.
18.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without MonDevices’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4 Force Majeure. MonDevices 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 or materials.
18.5 Compliance. If you believe that MonDevices has not adhered to the Terms, please contact MonDevices by emailing us at support@mondevices.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
18.6 Limitations Period. YOU AND MONDEVICES AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, OUR PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.7 Arbitration Agreement.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by MonDevices that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and MonDevices, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to MonDevices should be sent to: 205 West 57 Street, 4AA, New York, NY 10019. After the Notice is received, you and MonDevices may attempt to resolve the claim or dispute informally. If you and MonDevices do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that MonDevices made to you prior to the initiation of arbitration, MonDevices will pay you the greater of the award or $2500. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or MonDevices pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and MonDevices, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. 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 has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and MonDevices.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and MonDevices in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MONDEVICES WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with MonDevices.
(m) Small Claims Court. Notwithstanding the foregoing, either you or MonDevices may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, 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 secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
18.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
18.9 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
18.10 Notice. Where MonDevices requires that you provide an e-mail address, you are responsible for providing MonDevices with your most current e-mail address. In the event that the last e-mail address you provided to MonDevices is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, MonDevices’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to MonDevices at the following address: 205 West 57 Street, 4AA, New York, NY 10019. Such notice shall be deemed given when received by MonDevices by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.11 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.
18.12 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.
18.13 Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. In particular, but without limitation, Our 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 Our 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 Our 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 MonDevices 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 MonDevices products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.14 Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
(a) You acknowledge and agree that (i) the Terms are concluded between you and MonDevices only, and not Apple, and (ii) MonDevices, 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 MonDevices 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 MonDevices.
(d) You and MonDevices acknowledge that, as between MonDevices 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 MonDevices 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 MonDevices and Apple, MonDevices, 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 MonDevices 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.
18.15 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services 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.
18.16 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.
End of Terms
