Misolito
Terms of Service
Last Updated: [2/14/2023date]
Welcome,
and thank you for your interest in Misolito Inc. (“Misolito,” “we,” or “us”)
and our website at https://www.misolito.com,
along with our related websites, hosted applications, mobile or other
downloadable applications, and other services provided by us (collectively, the
“Service”). These Terms of Service are a legally binding contract
between you and Misolito regarding your use of the
Service.
PLEASE READ THE
FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY
DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE
THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE
SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS,
INCLUDING Misolito’S PRIVACY
POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the
Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND Misolito’S PROVISION OF THE SERVICE TO YOU,
CONSTITUTES AN AGREEMENT BY Misolito AND BY YOU TO BE BOUND BY THESE TERMS.
YOU AGREE TO RECEIVE TEXTS FROM
OR ON BEHALF OF Misolito AT THE
PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE ONE TIME PASSWORDS FOR
LOG-IN PURPOSES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED
TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC
TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT
A CONDITION OF ANY PURCHASE.
Arbitration NOTICE. Except for certain kinds of
disputes described in Section 18 (Dispute Resolution and Arbitration), you agree that
disputes arising under these Terms will be resolved by binding, individual
arbitration, and BY ACCEPTING THESE TERMS, YOU AND Misolito ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1.
Misolito Service Overview. Misolito provides a
platform for users to share recommendations and help others to find the right
brands based on the preferences of their trusted people. Our mission is to
unblock the future of customer experiences by enabling personalization in the
online and physical worlds.
3.
Accounts and Registration. To access the Service, you must
register for an account. When you register for an account, you may be required
to provide us with some information about yourself, such as your name, email
address, phone number, city of residence, or other contact information. You
agree that the information you provide to us is accurate, complete, and not misleading, and that
you will keep it accurate and up to date at all times. You accept responsibility
for all activities that occur under your account. If you believe that your
account is no longer secure, then you should immediately notify us at support@misolito.com. Depending on the
type of user account you are registering for, the registration process, Service
features, and fees payable, may vary, and additional terms may apply, as
specified further herein.
3.1
Individual Users. If
you are accessing or using the Services as an individual (“Individual User”),
you will be able to register for a user account.
3.2
Business or Entity.
If you are accessing or using the Services as a business or entity or if you
use the “claim a business” function of the Service (in each case, you will be
referred to as a “Business”), then in addition to the rest of the Terms,
Section 9
also applies to your access and use of the Services. The individual accepting
these Terms on your behalf represents and warrants that they have authority to
bind you to these Terms and you agree to be bound by these Terms. If you
delegate your access to the Services to a person within your organization to
manage the account on your behalf, you will be solely responsible for his or
her actions or omissions under these Terms.
4.
General Payment Terms. Certain features or subscription levels of
the Service may require you to pay fees. Before you pay any fees, you will have
an opportunity to review and accept the fees that you will be charged. All fees
are in U.S. Dollars and are non-refundable unless otherwise specifically
provided for in these Terms.
4.1
Price. Misolito reserves the right to
determine pricing for the Service. Misolito will make
reasonable efforts to keep pricing information published on the Service up to
date. We encourage you to check our pricing page periodically for current
pricing information. Misolito may change the fees for
any feature of the Service, including additional fees or charges, if Misolito gives you advance notice of changes before they
apply. Misolito, at its sole discretion, may make
promotional offers with different features and different pricing to any of Misolito’s customers. These promotional offers, unless made
to you, will not apply to your offer or these Terms.
4.2
Authorization. You authorize Misolito or
a third party on Misolito’s behalf (including Apple
App Store and Google Play) to charge all sums for the orders that you make and
any level of Service you select as described in these Terms or published by Misolito, including all applicable taxes, to the payment
method specified in your account. If you pay any fees with a credit card, then Misolito may seek pre-authorization of your credit card
account prior to your purchase to verify that the credit card is valid and has
the necessary funds or credit available to cover your purchase.
4.3
Subscription Service. The Service may include certain
subscription-based plans with automatically recurring payments for periodic
charges (“Subscription Service”).
The “Subscription Billing Date”
is the date when you purchase your first subscription to the Service. The
Subscription Service will begin on the Subscription Billing Date and continue
for the subscription period that you select on your account (such period, the “Initial Subscription Period”),
and will automatically renew for successive periods of the same duration as the
Initial Subscription Period (the Initial Subscription Period and each such
renewal period, each a “Subscription
Period”) unless you cancel the Subscription Service
or we terminate it. If you activate a Subscription Service, then you authorize Misolito or its third-party payment processors to
periodically charge, on a going-forward basis and until cancellation of the
Subscription Service, all accrued sums on or before the payment due date. For
information on the “Subscription Fee”,
please see the Subscribe page in the mobile app. Your account will be charged
automatically on the Subscription Billing Date and thereafter on the renewal
date of your Subscription Service for all applicable fees and taxes for the
next Subscription Period. You must cancel your Subscription Service at least a
day before it renews in order to avoid billing of the
next periodic Subscription Fee to your account. Misolito
or its third-party payment processor will bill the periodic Subscription Fee to
the payment method associated with your account or that you otherwise provide
to us. You may cancel the Subscription Service in the app store where you
initially purchased the mobile app (e.g., Apple App Store or Google Play). Your cancellation must be received before the
renewal date in order to avoid charge for the next subscription period.
4.4
Delinquent Accounts. Misolito may suspend
or terminate access to the Service, including fee-based portions of the
Service, for any account for which any amount is due but unpaid. In addition to
the amount due for the Service, a delinquent account will be charged with fees
or charges that are incidental to any chargeback or collection of any the
unpaid amount, including collection fees. If your payment method is no longer
valid at the time a renewal Subscription Fee is due, then Misolito
reserves the right to delete your account and any information or User Content
(defined below) associated with your account without any liability to you.
5.1
Limited License. Subject to your complete and ongoing compliance
with these Terms, Misolito
grants you, solely for your personal or internal use, a limited, non-exclusive,
non-transferable, non-sublicensable, revocable license to: (a) install and use
one object code copy of any mobile or other downloadable application associated
with the Service (whether installed by you or pre-installed on your mobile
device by the device manufacturer or a wireless telephone provider) on a mobile
device that you own or control; and (b) access and use the Service.
5.2
License Restrictions. Except and solely to the extent such a
restriction is impermissible under applicable law, you may not: (a) reproduce,
distribute, publicly display,
publicly perform, or create derivative works of the Service; (b) make
modifications to the Service; or (c) interfere with or circumvent any feature
of the Service, including any security or access control mechanism. If you are
prohibited under applicable law from using the Service, then you may not use
it.
6.
Ownership; Proprietary Rights. The Service is owned and operated by
Misolito. The visual interfaces, graphics, design,
compilation, information, data, computer code (including source code or object
code), products, software, services, lists of brands, preferences, and all
other elements of the Service provided by Misolito (“Materials”) are protected by
intellectual property and other laws. All Materials included in the Service are
the property of Misolito or its third-party
licensors. Except as expressly authorized by Misolito,
you may not make use of the Materials. There are no implied licenses in these
Terms and Misolito reserves all rights to the
Materials not granted expressly in these Terms.
7.
Third-Party Terms
7.1
Third-Party Services and Linked Websites. The Service may contain
links to third-party websites. Linked websites are not under Misolito’s control, and Misolito
is not responsible for their content. Please be sure to review the terms of use
and privacy policy of any third-party services before you share any User
Content or information with such third-party services. Once sharing occurs, Misolito will have no control over the information that has
been shared.
7.2
Third-Party Software. The Service may include or incorporate
third-party software components that are generally available free of charge
under licenses granting recipients broad rights to copy, modify, and distribute
those components (“Third-Party
Components”). Although the Service is provided to you subject to these
Terms, nothing in these Terms prevents, restricts, or is intended to prevent or
restrict you from obtaining Third-Party Components under the applicable
third-party licenses or to limit your use of Third-Party Components under those
third-party licenses.
8.1
User Content Generally. Certain features of the Service may permit
users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service,
including messages, reviews, comments, information, referral codes, links,
photos, video or audio (including sound or voice recordings and musical
recordings embodied in the video or audio), images, folders, data, text, and
any other works of authorship or other works (“User Content”). You retain any copyright and other
proprietary rights that you may hold in the User Content that you Post to the
Service, subject to the licenses granted in these Terms.
8.2
Limited License Grant to Misolito. By Posting User Content to or via the
Service, you grant Misolito a worldwide, non-exclusive,
irrevocable, royalty-free, fully paid right and license (with the right to
sublicense through multiple tiers) to host, store, transfer, publicly display,
publicly perform (including by means of a digital audio transmission),
communicate to the public, reproduce, modify for the purpose of formatting for
display, create derivative works as authorized in these Terms, and distribute
your User Content, in whole or in part, in any media formats and through any
media channels, in each instance whether now known or hereafter developed.
All of the rights you grant in these Terms are
provided on a through-to-the-audience basis, meaning the owners or operators of
external services will not have any separate liability to you or any other
third party for User Content Posted or otherwise used on external services via
the Service. You agree to pay all monies owing to any person or entity
resulting from Posting your User Content and from Misolito’s
exercise of the license set forth in this Section. We may also use aggregated
and anonymous data derived from User Content, for example, to generate and
provide insights into brand preferences in a category.
8.4
You Must Have Rights to the Content You Post;
User Content Representations and Warranties. You must not Post User Content
if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Misolito disclaims any and all
liability in connection with User Content. You are solely responsible for your
User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm,
represent, and warrant to us that:
(a)
you are the creator and
owner of the User Content, or have the necessary licenses, rights, consents,
and permissions to authorize Misolito and users of
the Service to use and distribute your User Content as necessary to exercise
the licenses granted by you in this Section, in the manner contemplated by Misolito, the Service, and these Terms;
(b)
your User Content, and the
Posting or other use of your User Content as contemplated by these Terms, does
not and will not: (i) infringe, violate,
misappropriate, or otherwise breach any third-party right, including any
copyright, trademark, patent, trade secret, moral right, privacy right, right
of publicity, or any other intellectual property, contract, or proprietary
right; (ii) slander, defame, libel, or invade the right of privacy,
publicity or other property rights of any other person; or (iii) cause Misolito to violate any law or regulation or require us to
obtain any further licenses from or pay any royalties, fees, compensation or
other amounts or provide any attribution to any third parties; and
(c)
your User Content could not
be deemed by a reasonable person to be objectionable, profane, indecent,
pornographic, harassing, threatening, embarrassing, hateful, or otherwise
inappropriate.
(e)
you will not create
recommendations, referrals, or other User Content that contain malware, spyware
or any other malicious code or otherwise interfere with the operation of the
Services or any device or system or breach or circumvent any security measure
of Misolito or a third party.
8.5
User Content Disclaimer. We are under no obligation to edit or
control User Content that you or other users Post and will not be in any way
responsible or liable for User Content. Without limiting the generality of the
foregoing, you acknowledge that any preferences and referral links you Post may
be shared with your followers or any other users on the Services, and we are
not responsible for and hereby expressly disclaim any liability related to such
referral links or any content and property to which such links may direct
viewers, as well as redirects. Misolito may, however,
at any time and without prior notice, screen, remove, edit, or block any User
Content that in our sole judgment violates these Terms, is alleged to violate
the rights of third parties, or is otherwise objectionable. You understand
that, when using the Service, you will be exposed to User Content from a
variety of sources and acknowledge that User Content may be inaccurate,
offensive, indecent, or objectionable. You agree to waive, and do waive, any
legal or equitable right or remedy you have or may have against Misolito with respect to User Content. If notified by a
user or content owner that User Content allegedly does not conform to these
Terms, we may investigate the allegation and determine in our sole discretion
whether to remove the User Content, which we reserve the right to do at any
time and without notice. For clarity, Misolito does
not permit infringing activities on the Service.
8.6
Monitoring Content. Misolito does not
control and does not have any obligation to monitor: (a) User Content; (b) any
content made available by third parties; or (c) the use of the Service by its
users. You acknowledge and agree that Misolito
reserves the right to, and may from time to time, monitor any
and all information transmitted or received through the Service for
operational and other purposes. If at any time Misolito
chooses to monitor the content, then Misolito still
assumes no responsibility or liability for content or
any loss or damage incurred as a result of the use of content. During
monitoring, information may be examined, recorded, copied, and used in
accordance with our Privacy Policy (defined below). Misolito
may block, filter, mute, remove or disable access to any User Content uploaded
to or transmitted through the Service without any liability to the user who
Posted such User Content to the Service or to any other users of the Service.
8.7
Brand List. We maintain a
list of brands on the Services and may allow you to add or submit additional
brand names that are not currently on the list. You represent and warrant that
any additional brand name you submit to us is true and accurate. Misolito reserves the right to remove any brand name you
submitted to us at any time for any reason, regardless of whether
or not such brand name was previously accepted.
9.1
Responsibilities.
You are responsible for (i) all postings and content
submitted by or on your behalf through the Services or otherwise to Misolito, including but not limited to business
descriptions, information, creatives, trademarks, images, and URLs that
comprise the postings or content therefor (collectively, "Business
Information"); and (ii) all content and property to which Business Information
may direct viewers, as well as redirects ("Destinations"). For
the avoidance of doubt, Business Information and Destinations are User
Contents, as defined in Section 8.
9.2
Removal. Misolito may remove any Business
Information or Destination at any time for any reason, regardless of whether or not such Business
Information or Destination was previously accepted. In the
event that we discover or become aware that you are not the true owner
of a business that you claimed ownership to on the Service, we reserve the
right to (a) remove your access to such business’ page and data and (b) block
your access to the Service, in addition to any other remedies we may have under
these Terms.
9.3
Business Representations and Warranties. Without limiting the prohibitions in Section 11 below, you agree that you will not, and you will not enable or authorize
any third party, to:
1.1.1
claim ownership to a
business or pretend to own a business on the Service unless you are the true
owner of such business or brand;
1.1.2
create Business Information
that intentionally misrepresent the business or brand;
1.1.3
“spam,”
harass, or otherwise contact Individual Users via the Service;
1.1.4
engage in solicitations,
communications or transactions that violate any applicable laws or regulations;
1.1.5
create Business Information
or Destinations that contain malware, spyware or any other malicious code or
otherwise interfere with the operation of the Services or any device or system
or breach or circumvent any security measure of Misolito
or a third party, or
1.1.6
violate, or fail to comply
with, any applicable laws or regulations.
10.
Communications
10.1
Text Messaging. You agree that Misolito
and those acting on our behalf may send you text (SMS) messages at the phone
number you provide us. These messages include operational messages about your use of the
Service. Text messages may be sent using
an automatic telephone dialing system. Standard data and message rates may
apply whenever you send or receive such messages, as specified by your carrier.
IF YOU WISH TO OPT OUT OF ALL TEXT
MESSAGES FROM Misolito, YOU CAN EMAIL SUPPORT@misolito.com OR TEXT THE WORD “STOPALL” TO THE
NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT
OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You
may continue to receive text messages for a short period while we process your
request, including a message confirming the receipt of your
opt-out request. Your agreement to receive marketing texts is not a condition
of any purchase on or use of the Service.
10.2
Push Notifications. When you install our app on your mobile device,
you agree to receive push notifications, which are messages an app sends you on
your mobile device when you are not in the app. You can turn off notifications
by visiting your mobile device’s “settings” page.
10.3
Email. We may send you emails concerning our products and services,
as well as those of third parties. You may opt out of promotional emails by
following the unsubscribe instructions in the promotional email itself.
11.1
use the Service for any
illegal purpose or in violation of any local, state, national, or international
law;
11.2
harass, threaten, demean,
embarrass, bully, or otherwise harm any other user of the Service;
11.3
violate, encourage others
to violate, or provide instructions on how to violate, any right of a third party,
including by infringing or misappropriating any third-party intellectual
property right;
11.4
access, search, or
otherwise use any portion of the Service through the use of any engine,
software, tool, agent, device, or mechanism (including spiders, robots,
crawlers, and data mining tools) other than the software or search agents
provided by Misolito;
11.5
interfere with
security-related features of the Service, including by: (i)
disabling or circumventing features that prevent or limit use, printing or
copying of any content; or (ii) reverse engineering or otherwise
attempting to discover the source code of any portion of the Service except to
the extent that the activity is expressly permitted by applicable law;
11.6
interfere with the
operation of the Service or any user’s enjoyment of the Service, including by:
(i) uploading or otherwise disseminating any
virus, adware, spyware, worm, or other malicious code; (ii) making any
unsolicited offer or advertisement to another user of the Service;
(iii) collecting personal information about another user or third party
without consent; or (iv) interfering with or disrupting any network,
equipment, or server connected to or used to provide the Service;
11.7
perform any fraudulent
activity including impersonating any person or entity, claiming a false
affiliation or identity, accessing any other Service account without permission;
11.8
sell or otherwise transfer
the access granted under these Terms or any Materials (as defined in
Section 6 (Ownership; Proprietary Rights)) or any right or ability
to view, access, or use any Materials; or
11.9
attempt to do any of the
acts described in this Section 11 (Prohibited Conduct) or assist or permit any person in
engaging in any of the acts described in this Section 11 (Prohibited Conduct).
12.1
Respect of Third Party Rights. Misolito respects the intellectual property rights of
others, takes the protection of intellectual property rights very seriously,
and asks users of the Service to do the same. Infringing activity will not be
tolerated on or through the Service.
Misolito
Inc.
Attn: Legal Department (IP Notification)
Goodwin Square, 225 Asylum Street, 20th Floor
Hartford, CT 06103
Email: ip-infringement@misolito.com
12.3
Procedure for Reporting Claimed Infringement. If you believe that
any content made available on or through the Service has been used or exploited
in a manner that infringes an intellectual property right you own or control,
then please promptly send a written “Notification
of Claimed Infringement” to the Designated Agent identified above
containing the following information:
(a)
an electronic or physical
signature of the person authorized to act on behalf of the owner of the
copyright or other right being infringed;
(b)
a description of the
copyrighted work or other intellectual property right that you claim has been infringed;
(c)
a description of the
material that you claim is infringing and where it is located on the Service;
(d)
your address, telephone
number, and email address;
(e)
a statement by you that you
have a good faith belief that the use of the materials on the Service of which
you are complaining is not authorized by the copyright or other intellectual
property right owner, its agent, or the law; and
(f)
a statement by you that the
above information in your notice is accurate and that, under penalty of
perjury, you are the copyright or other intellectual property right owner or
authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by Misolito with the user alleged to have infringed a
right you own or control as well as with the operators of publicly available
databases that track notifications of claimed infringement, and you consent to Misolito making such disclosures. You should consult with your
own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a
valid notice of claimed infringement.
12.4
Repeat Infringers. Misolito’s policy is
to: (a) remove or disable access to material that Misolito
believes in good faith, upon notice from an intellectual property rights owner
or authorized agent, is infringing the intellectual property rights of a third
party by being made available through the Service; and (b) in appropriate
circumstances, to terminate the accounts of and block access to the Service by
any user who repeatedly or egregiously infringes other people’s copyright or
other intellectual property rights. Misolito will
terminate the accounts of users that are determined by Misolito
to be repeat infringers. Misolito reserves the right,
however, to suspend or terminate accounts of users in our sole discretion.
12.5
Counter Notification. If you receive a notification from Misolito that material made available by you on or through
the Service has been the subject of a Notification of Claimed Infringement,
then you will have the right to provide Misolito with
what is called a “Counter
Notification.” To be effective, a Counter Notification must be in
writing, provided to Misolito’s Designated Agent
through one of the methods identified in Section 12.2 (DMCA Notification),
and include substantially the following information:
(a)
your physical or electronic
signature;
(b)
identification of the material
that has been removed or to which access has been disabled and the location at
which the material appeared before it was removed or access to it was disabled;
(c)
a statement under penalty
of perjury that you have a good faith belief that the material was removed or
disabled as a result of mistake or misidentification
of the material to be removed or disabled; and
(d)
your name, address, and
telephone number, and a statement that you consent to the jurisdiction of
Federal District Court for the judicial district in which the address is
located, or if you are residing outside of the United States, then for any
judicial district in which Misolito may be found, and
that you will accept service of process from the person who provided
notification under Section 12.2 (DMCA Notification)
above or an agent of that person.
A
party submitting a Counter Notification should consult a lawyer or see 17
U.S.C. § 512 to confirm the party’s obligations to provide a valid counter
notification under the Copyright Act.
12.6
Reposting of Content Subject to a Counter Notification. If you
submit a Counter Notification to Misolito in response
to a Notification of Claimed Infringement, then Misolito
will promptly provide the person who provided the Notification of Claimed
Infringement with a copy of your Counter Notification and inform that person
that Misolito will replace the removed User Content
or cease disabling access to it in 10 business days, and Misolito
will replace the removed User Content and cease disabling access to it not less
than 10, nor more than 14, business days following receipt of the Counter
Notification, unless Misolito’s Designated Agent
receives notice from the party that submitted the Notification of Claimed
Infringement that such person has filed an action seeking a court order to
restrain the user from engaging in infringing activity relating to the material
on Misolito’s system or network.
12.7
False Notifications of Claimed Infringement or Counter Notifications.
The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny
person who knowingly materially misrepresents under [Section 512 of the
Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing,
or (2) that material or activity was removed or disabled by mistake or
misidentification, will be liable for any damages, including costs and
attorneys’ fees, incurred by the alleged infringer, by any copyright owner or
copyright owner’s authorized licensee, or by a service provider, who is injured
by such misrepresentation, as the result of [Misolito]
relying upon such misrepresentation in removing or disabling access to the
material or activity claimed to be infringing, or in replacing the removed material
or ceasing to disable access to it.” Misolito
reserves the right to seek damages from any party that submits a Notification
of Claimed Infringement or Counter Notification in violation of the law.
14.
Term, Termination,
and Modification of the Service
14.1
Term. These Terms are effective beginning when you accept the Terms
or first download, install, access, or use the Service, and ending when
terminated as described in Section 14.2 (Termination).
14.3
Effect of Termination. Upon termination of these Terms: (a) your
license rights will terminate and you must immediately cease all use of the
Service; (b) you will no longer be authorized to access your account or the
Service; (c) you must pay Misolito any unpaid amount that was due prior to
termination; and (d) all payment obligations accrued
prior to termination and Sections 5.3 (Feedback),
6 (Ownership;
Proprietary Rights), 14.3 (Effect of
Termination), 15 (Indemnity),
16 (Disclaimers;
No Warranties by Misolito), 17 (Limitation
of Liability), 18 (Dispute
Resolution and Arbitration), and 19 (Miscellaneous)
will survive. Upon termination of these Terms, you may contact support@misolito.com to
remove your User Content from the Service. You are solely responsible for
retaining copies of any User Content you Post to the Service since upon
termination of your account, you may lose access rights to any User Content you
Posted to the Service. If your account has been terminated for a breach of
these Terms, then you are prohibited from creating a new account on the Service
using a different name, phone number, email address or other forms of account
verification.
14.4
Modification of the Service. Misolito
reserves the right to modify or discontinue all or any portion of the Service
at any time (including by limiting or discontinuing certain features of the
Service), temporarily or permanently, without notice to you. Misolito will have no liability for any change to the
Service, including any paid-for functionalities of the Service, or any suspension or termination of
your access to or use of the Service. You should retain copies of any
User Content you Post to the Service so that you have permanent copies in the
event the Service is modified in such a way that you lose access to User
Content you Posted to the Service.
15.
Indemnity. To
the fullest extent permitted by law, you are responsible for your use of the
Service, and you will defend and indemnify Misolito,
its affiliates and their respective shareholders, directors, managers, members,
officers, employees, consultants, and agents (together, the “Misolito Entities”) from and against
every claim brought by a third party, and any related liability, damage, loss,
and expense, including attorneys’ fees and costs, arising out of or connected
with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation
of any portion of these Terms, any representation, warranty, or agreement
referenced in these Terms, or any applicable law or regulation; (3) your
violation of any third-party right, including any intellectual property right
or publicity, confidentiality, other property, or privacy right; or (4) any
dispute or issue between you and any third party. We reserve the right, at our
own expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you (without limiting your
indemnification obligations with respect to that matter), and in that case, you
agree to cooperate with our defense of those claims.
16.1
THE SERVICE AND ALL
MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON
AN “AS AVAILABLE” BASIS. Misolito
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE,
INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY
WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Misolito DOES NOT
WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR
CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF
ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS,
AND Misolito DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
16.2
NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR Misolito ENTITIES OR ANY MATERIALS
OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY
OF THE Misolito ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE
TERMS. WE ARE NOT RESPONSIBLE FOR
ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR
DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY
PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR
MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA,
INCLUDING USER CONTENT.
16.3
THE LIMITATIONS, EXCLUSIONS
AND DISCLAIMERS IN THIS SECTION 16
(Disclaimers;
No Warranties by Misolito) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Misolito does not disclaim any warranty or other right that
Misolito is prohibited from disclaiming under
applicable law.
17.1
TO THE FULLEST EXTENT
PERMITTED BY LAW, IN NO EVENT WILL THE Misolito
ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE
LOSS) ARISING OUT OF OR RELATING TO
YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR
ANY MATERIALS OR CONTENT ON THE SERVICE,
WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR
ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Misolito ENTITY HAS BEEN
INFORMED OF THE POSSIBILITY OF DAMAGE.
17.2
EXCEPT AS PROVIDED IN SECTIONS 18.5 (Commencing Arbitration) AND 18.7 (ARBITRATION RELIEF) AND TO THE
FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE Misolito
ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY
PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE
PAID TO Misolito FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS
PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND
(b) US$100.
17.3
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES
ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN
ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF
THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE
TERMS. THE LIMITATIONS IN THIS SECTION 17 (LIMITATION OF LIABILITY) WILL APPLY
EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18.1
Generally. Except as described in Section 18.2 (Exceptions)
and 18.3 (Opt-Out),
you and Misolito agree that every dispute arising in
connection with these Terms, the Service, or communications from us will be
resolved through binding arbitration. Arbitration uses a neutral arbitrator
instead of a judge or jury, is less formal than a court proceeding, may allow
for more limited discovery than in court, and is subject to very limited review
by courts. This agreement to arbitrate disputes includes all claims whether
based in contract, tort, statute, fraud, misrepresentation, or any other legal
theory, and regardless of whether a claim arises during or after the
termination of these Terms. Any dispute relating to the interpretation,
applicability, or enforceability of this binding arbitration agreement will be
resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND Misolito ARE EACH
WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.3
Opt-Out. If you do not wish to resolve disputes by binding
arbitration, you may opt out of the provisions of this Section 18 (Dispute Resolution and Arbitration) within
30 days after the date that you agree to these Terms by sending a letter to Misolito Inc., Attention: Legal Department – Arbitration
Opt-Out, Goodwin Square, 225 Asylum Street, 20th Floor, Hartford, CT 06103 that
specifies: your full legal name, the email address associated with your account
on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Misolito receives your Opt-Out Notice, this Section 18 (Dispute Resolution and Arbitration) will
be void and any action arising out of these Terms will be resolved as set forth
in Section 19.2 (Governing Law).
The remaining provisions of these Terms will not be affected by your Opt-Out
Notice.
18.4
Arbitrator. This arbitration agreement, and any arbitration between
us, is subject the Federal Arbitration Act and will be administered by the
American Arbitration Association (“AAA”) under its Consumer
Arbitration Rules (collectively, “AAA Rules”) as modified by
these Terms. The AAA Rules and filing forms are available online at
www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Misolito.
18.5
Commencing Arbitration.
Before initiating arbitration, a party must first send a written notice of the
dispute to the other party by certified U.S. Mail or by Federal Express
(signature required) or, only if that other party has not provided a current
physical address, then by electronic mail (“Notice of Arbitration”). Misolito’s address for Notice is: Misolito
Inc., Goodwin Square, 225 Asylum Street, 20th Floor, Hartford, CT 06103. The
Notice of Arbitration must: (a) identify the name or account number of the
party making the claim; (b) describe the nature and basis of the claim or
dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to
resolve the claim directly, but if the parties do not reach an agreement to do
so within 30 days after the Notice of Arbitration is received, you or Misolito may commence an arbitration proceeding. If you
commence arbitration in accordance with these Terms, Misolito
will reimburse you for your payment of the filing fee, unless your claim is for
more than US$10,000 or if the Company has received 25 or more similar demands
for arbitration, in which case the payment of any fees will be decided by the
AAA Rules. If the arbitrator finds that either the substance of the claim or
the relief sought in the Demand is frivolous or brought for an improper purpose
(as measured by the standards set forth in Federal Rule of Civil Procedure
11(b)), then the payment of all fees will be governed by the AAA Rules and the
other party may seek reimbursement for any fees paid to AAA.
18.7
Arbitration Relief.
Except as provided in Section 18.8 (No Class Actions),
the arbitrator can award any relief that would be available if the claims had
been brough in a court of competent jurisdiction. If the arbitrator awards you
an amount higher than the last written settlement amount offered by Misolito before an arbitrator was selected, Misolito will pay to you the higher of: (a) the amount
awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall
be final and binding on all parties , except (1) for judicial review expressly
permitted by law or (2) if the arbitrator's award includes an award of
injunctive relief against a party, in which case that party shall have the
right to seek judicial review of the injunctive relief in a court of competent
jurisdiction that shall not be bound by the arbitrator's application or
conclusions of law. Judgment on the award may be entered in any court having
jurisdiction.
18.9
Modifications to this Arbitration Provision. If Misolito
makes any substantive change to this arbitration provision, you may reject the
change by sending us written notice within 30 days of the change to Misolito’s address for Notice of Arbitration, in which case
your account with Misolito will be immediately
terminated and this arbitration provision, as in effect immediately prior to
the changes you rejected will survive.
18.10
Enforceability. If Section 18.8 (No
Class Actions) or the entirety of this Section 18 (Dispute
Resolution and Arbitration) is found to be unenforceable, or if Misolito receives an Opt-Out Notice from you, then the
entirety of this Section 18 (Dispute
Resolution and Arbitration) will be null and void and, in that case,
the exclusive jurisdiction and venue described in Section 19.2 (Governing
Law) will govern any action arising out of or related to these Terms.
19.1
General
Terms. These Terms,
including the Privacy Policy and any other agreements expressly incorporated by
reference into these Terms, are the entire and exclusive understanding and
agreement between you and Misolito regarding your use
of the Service. You may not assign or transfer these Terms or your rights under
these Terms, in whole or in part, by operation of law or otherwise, without our
prior written consent. We may assign these Terms and all rights granted under
these Terms, including with respect to your User Content, at any time without
notice or consent. The failure to require performance of any provision will not
affect our right to require performance at any other time after that, nor will
a waiver by us of any breach or default of these Terms, or any provision of
these Terms, be a waiver of any subsequent breach or default or a waiver of the
provision itself. Use of Section headers in these Terms is for convenience
only and will not have any impact on the interpretation of any provision.
Throughout these Terms the use of the word “including” means “including but not
limited to.” If any part of these Terms is held to be invalid or unenforceable,
then the unenforceable part will be given effect to the greatest extent
possible, and the remaining parts will remain in full force and effect.
19.2
Governing Law. These Terms are governed by the laws of the State of
Connecticut without regard to conflict of law principles. You and Misolito submit to the personal and exclusive
jurisdiction of the state courts and federal courts located within Fairfield
County, Connecticut for resolution of any lawsuit or court proceeding permitted
under these Terms. We operate the Service from our offices in Connecticut, and
we make no representation that Materials included in the Service are
appropriate or available for use in other locations.
19.3
Privacy Policy. Please read the Misolito Privacy
Policy
(the “Privacy Policy”)
carefully for information relating to our collection, use, storage, and
disclosure of your personal information. The Misolito Privacy Policy is
incorporated by this reference into, and made a part of, these Terms.
19.6
Contact
Information. The Service is
offered by Misolito Inc..
You may contact us by sending correspondence to 606 Post Rd E #707, Westport,
Connecticut 06880, or by emailing us at support@misolito.com.
19.7
Notice to California Residents. If you are a California resident,
then under California Civil Code Section 1789.3, you may contact the
Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs in writing at 1625 N. Market Blvd.,
Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210
in order to resolve a complaint regarding the Service or to receive further
information regarding use of the Service.
19.8
No Support. We are under no obligation to provide support for the
Service. In instances where we may offer support, the support will be subject
to published policies.
19.9
International Use. The Service is intended for visitors located
within the United States. We make no representation that the Service is
appropriate or available for use outside of the United States. Access to the
Service from countries or territories or by individuals where such access is
illegal is prohibited.
20.
Notice Regarding Apple. This Section 20 (Notice
Regarding Apple) only applies to the extent you are using our mobile
application on an iOS device. You acknowledge that these Terms are between you and Misolito only, not with Apple Inc. (“Apple”), and Apple is not
responsible for the Service or the content of it.
Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable
warranty, you may notify Apple, and Apple will refund any applicable purchase
price for the mobile application to you. To the maximum extent permitted by
applicable law, Apple has no other warranty obligation with respect to the
Service. Apple is not responsible for addressing any claims
by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product
liability claims; (2) any claim that the Service fails to conform to any
applicable legal or regulatory requirement; or (3) claims arising under
consumer protection or similar legislation. Apple is not responsible for the
investigation, defense, settlement, and discharge
of any third-party claim that the Service and/or
your possession and use of the Service infringe a third party’s intellectual property
rights. You agree to comply with any applicable
third-party terms when using the Service. Apple and Apple’s subsidiaries are
third-party beneficiaries of these Terms, and upon your acceptance of these
Terms, Apple will have the right (and will be deemed to have accepted the
right) to enforce these Terms against you as a third-party beneficiary of these
Terms. You hereby represent and warrant that: (a) 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
(b) you are not listed on any U.S. Government list of prohibited or
restricted parties.