Effective Date: July 20, 2020
Last Updated Date: June 18, 2020
PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Services consist of the following, without limitation:
The Mighty is a digital health community created to empower and connect people facing health challenges and disabilities and a platform for users to submit personal stories and resources (the “The Mighty Content”). The Mighty Site located at www.themighty.com (the “The Mighty Site” or “Site”) and The Mighty App allow users to view, read and engage with The Mighty Content. The Services allow users to connect to gain access The Mighty Content and to connect with other users on The Mighty platform.
- Eligibility. PERSONS UNDER 16 ARE PROHIBITED FROM PROVIDING PERSONAL INFORMATION ON OUR SERVICES. If you are under 18, you may only use our Services with the consent of a parent or guardian 18 years of age or older, which you agree you have obtained and proof of which we may require. If you believe that a person under 16 has submitted personal information, please email us at [email protected].
- The Mighty Properties.
- Access to and Use of The Mighty Properties. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Services (“The Mighty Properties”) are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. The Mighty Properties may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of The Mighty Properties. Nothing in these Terms grants you any right to receive delivery of a copy of The Mighty Properties or to obtain access to The Mighty Properties except as generally and ordinarily permitted through the Site, according to these Terms. Furthermore, nothing in these Terms will be deemed to grant, by implication, estoppel or otherwise, a license to The Mighty Properties. Certain of the names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of The Mighty or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third party software provided in connection with the Site will be governed by such third parties’ licenses and not by these Terms.
- App License. Subject to your compliance with the Terms, The Mighty grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of The Mighty App on a single mobile device or computer that you own or control and to run such copy of The Mighty App solely for your own personal or internal business purposes. 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 (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the application on a shared basis within your designated family group.
- Updates. You understand that The Mighty Properties are evolving. As a result, The Mighty may require you to accept updates to The Mighty Properties that you have installed on your computer. You acknowledge and agree that The Mighty may update The Mighty Properties with or without notifying you. You may need to update third-party software from time to time in order to use The Mighty Properties.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit The Mighty Properties or any portion of The Mighty Properties, including the Site, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other The Mighty Properties (including images, text, page layout or form) of The Mighty; (c) you shall not use any metatags or other “hidden text” using The Mighty’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of The Mighty 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 Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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 The Mighty Properties in order to build a similar or competitive Site, application or service; (g) except as expressly stated herein, no part of The Mighty Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not post on the Site any franchise, pyramid scheme, “club membership,” distributorship or sales representative agency arrangement or other business opportunity which requires an up-front or periodic payment, pays commissions, or requires recruitment of other members, sub-distributors or sub-agents; (i) you shall not post anything that: (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, content that promotes racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner; (j) you shall not post advertisements or solicit any person to buy or sell products or services (other than our Products); (k) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in The Mighty Properties; and (l) you shall not access or use the Site or any Services, including any Content thereon, for benchmarking purposes or for other research purposes. Any future release, update or other addition to The Mighty Properties shall be subject to the Terms. The Mighty, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of The Mighty Properties terminates the licenses granted by The Mighty pursuant to the Terms.
- Third-Party Materials. As a part of The Mighty Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for The Mighty to monitor such materials and that you access these materials at your own risk.
- Registering Your Account. In order to access certain features of The Mighty Properties, you may be required to become a registered user and create an account (“Account”). To create an Account, you will be asked to submit certain information, which may include your name, a username, email address, and password. Each time you use your password or identification, you will be deemed to be authorized to access and use the Services in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Services.
- 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 The Mighty.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to The Mighty Properties, including but not limited to, a mobile device that is suitable to connect with and use The Mighty 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 The Mighty Properties.
- Responsibility for Content.
- Types of Content. The Services may contain galleries for blogs, chat areas, forums, comments and rankings, contests, communities, calendars, and/or other message or communication facilities designed to enable you and others to communicate with The Mighty and other users of the Services (collectively, “Communication Services“). You acknowledge that all content, including The Mighty Properties, and The Mighty Content (collectively, the “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not The Mighty, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through The Mighty Properties and the Communication Services, and that you and other users of The Mighty Properties and Communication Services (“Users”), and not The Mighty, are similarly responsible for all Content they Make Available through The Mighty Properties and the Communication Services (“User Content”). You acknowledge and agree that your access to and use of any Communication Services, and any Content you Make Available, are subject to The Mighty’s Community Policy. If any Content violates The Mighty’s Community Policy, The Mighty reserves the right to remove such Content and/or to suspend or terminate your Account.
- No Obligation to Pre-Screen Content. You acknowledge that The Mighty has no obligation to pre-screen Content (including, but not limited to, User Content), although The Mighty 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 any in-App or in-Services chat. In the event that The Mighty pre-screens, refuses or removes any Content, you acknowledge that The Mighty will do so for The Mighty’s benefit, not yours. Without limiting the foregoing, The Mighty shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by The Mighty in writing elsewhere, The Mighty has no obligation to store any of Your Content that you Make Available on The Mighty Properties. The Mighty has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of The Mighty Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that The Mighty retains the right to create reasonable limits on The Mighty’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Site and as otherwise determined by The Mighty in its sole discretion.
- The Mighty Properties. Except with respect to Your Content and User Content, you agree that The Mighty and its suppliers own all rights, title and interest in The Mighty Properties (including but not limited to, any visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, all other elements of the Services). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, or The Mighty Properties.
- Trademarks. The Mighty and other related graphics, logos, service marks and trade names used on or in connection with The Mighty Properties or in connection with the Services are the trademarks of The Mighty 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 The Mighty Properties are the property of their respective owners.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in The Mighty Properties. You will not use any Content that is not Your Content for benchmarking or other research purposes.
- Your Content; License to Your Content. The Mighty does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in The Mighty 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. You grant The Mighty 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, Your Content (in whole or in part) for the purposes of operating and providing The Mighty Properties and for our business purposes. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of The Mighty Properties; provided, however, The Mighty expressly prohibits any use of Your Content by such Users, or use of User Content by you, for benchmarking or other research purposes. 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 The Mighty, are responsible for all of Your Content that you Make Available on or in The Mighty Properties.
- Interactions with Other Users.
- User Responsibility. You are solely responsible for your interactions with other Users of the Services. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on the Services and that you give to other Users of the Services. You are discouraged from publicly posting your telephone number or street address on the Services. The Mighty reserves the right, but has no obligation, to intercede in any disputes with other Users. You agree that The Mighty will not be responsible for any liability incurred as the result of such interactions.
- Content Provided by Other Users. Information posted to the Services by other Users of the Services may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other Users with whom you come in contact through the Services. Opinions and other statements included in User Content do not represent the opinions or statements of The Mighty and the posting of User Content on the Services does not constitute The Mighty’s support or endorsement of any opinions or statements expressed in the applicable User Content. You use all User Content and interact with other Users at your own risk.
- Investigations. The Mighty may, but is not obligated to, (a) monitor or review the Site for violations of these Terms of Service and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (c) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Contribution or any portion thereof; (d) manage the Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Site, at any time. If The Mighty becomes aware of any possible violations by you of any provision of the Terms, The Mighty reserves the right to investigate such violations, and The Mighty may, at its sole discretion, immediately terminate your license to use The Mighty Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- Third Party Services.
- App Stores. You acknowledge and agree that the availability of The Mighty App and the Services is dependent on the third party from whom you received The Mighty App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms are between you and The Mighty and not with the App Store. The Mighty, not the App Store, is solely responsible for The Mighty Properties, including The Mighty App, 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 Mighty App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with The Mighty Properties, including The Mighty App. You agree to comply with, and your license to use The Mighty App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any The Mighty Property, including The Mighty App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.
- Indemnification. You agree to indemnify and hold The Mighty, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “The Mighty 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, The Mighty Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. The Mighty 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 The Mighty in asserting any available defenses. This provision does not require you to indemnify any of The Mighty Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to The Mighty Properties.
- Warranty Disclaimer; Limitation on Liability.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE MIGHTY PROPERTIES IS AT YOUR SOLE RISK, AND THE MIGHTY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE MIGHTY 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 ARISING FROM USE OF THE SERVICES.
- THE MIGHTY PARTIES MAKE NO GUARANTEE, WARRANTY, REPRESENTATION OR CONDITION THAT: (1) YOU OR ANY OTHER USER OF THE SERVICES WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SERVICES, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SERVICES OR WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE MIGHTY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MIGHTY PROPERTIES, INCLUDING ANY PRODUCT MADE AVAILABLE THROUGH THE SERVICES, WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE MIGHTY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE MIGHTY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE MIGHTY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- THE MIGHTY DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. ANY CONTENT ACCESSED THROUGH THE MIGHTY PROPERTIES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS OR ADVERSE EFFECTS. THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE CONTENT SHOULD NOT 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 BECAUSE OF INFORMATION ACCESSED THROUGH THE MIGHTY PROPERTIES. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.
- FROM TIME TO TIME, THE MIGHTY 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 THE MIGHTY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE MIGHTY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD The Mighty 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.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE MIGHTY PROPERTIES. YOU UNDERSTAND THAT The Mighty DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE MIGHTY PROPERTIES.
- Exclusion of Warranties, Etc. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU. WHERE LEGISLATION IN A JURISDICTION IMPLIES IN THE TERMS ANY CONDITION OR WARRANTY THAT CANNOT BE EXCLUDED, THE MIGHTY’S LIABILITY FOR BREACH THEREOF SHALL BE LIMITED AT THE MIGHTY’S OPTION TO ONE OR MORE OF THE FOLLOWING: (1) WHERE THE BREACH OF THE CONDITION OR WARRANTY RELATES TO GOODS, THE REPLACEMENT OR REPAIR OF THE GOODS, THE SUPPLY OF EQUIVALENT GOODS OR PAYMENT OF THE COST OF DOING SO; AND (2) WHERE THE BREACH OF THE CONDITION OR WARRANTY RELATES TO SERVICES, THE SUPPLY OF SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THEM SUPPLIED AGAIN.
- LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL The Mighty PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE MIGHTY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT THE MIGHTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE MIGHTY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE MIGHTY 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 THE MIGHTY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MIGHTY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE MIGHTY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A THE MIGHTY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A The Mighty PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A THE MIGHTY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL The Mighty PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO THE MIGHTY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A The Mighty PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A THE MIGHTY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A The Mighty PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE MIGHTY AND YOU.
- Remedies. If The Mighty becomes aware of any possible violations by you of the Terms, The Mighty reserves the right to investigate such violations. If, as a result of the investigation, The Mighty believes that criminal activity has occurred or may occur, The Mighty reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Mighty is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in The Mighty Properties, including Your Content, in The Mighty’s possession in connection with your use of The Mighty Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of The Mighty, its Users or the public, and all enforcement or other government officials, as The Mighty in its sole discretion believes to be necessary or appropriate.
- Term and Termination.
- 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 The Mighty Properties, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used The Mighty Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used The Mighty Properties (whichever is earlier) and will remain in full force and effect while you use The Mighty Properties, unless earlier terminated in accordance with the Terms.
- Additional Termination Rights. Either party may terminate this Agreement or suspend its performance under this Agreement at any time upon notice to the other party if the other party breaches any material term hereof and fails to cure such breach in accordance with the following cure procedure. If a party wishes to terminate this Agreement due to the other party breaching a material term of this Agreement, then the nonbreaching party shall serve written notice on the other party specifying the breach and requiring it to be rectified. If the material breach has not been remedied within thirty (30) days of the original notice of default or such other period as may be agreed, then the notifying party will have the right to terminate this Agreement by a further written notice, with immediate effect. The Mighty may also decommission the Services and terminate at any time upon thirty (30) days’ notice.
- 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. The Mighty 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.
- Procedure for Making Claims of Copyright Infringement. It is The Mighty’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to The Mighty 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 The Mighty 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 The Mighty 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; and (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 The Mighty’s Copyright Agent for notice of claims of copyright infringement is as follows:
Mighty Proud Media, Inc.
Michael Porath, Copyright Agent
210 N Glenoaks Blvd, Suite C
Burbank, CA 91502
Email: [email protected]
- International Users. The Mighty Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that The Mighty intends to announce such Services or Content in your country. The Mighty Properties are controlled and offered by The Mighty from its facilities in the United States of America. The Mighty makes no representations that The Mighty Properties are appropriate or available for use in other locations. Those who access or use The Mighty Properties from other countries do so at their own volition and are responsible for compliance with local law.
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with The Mighty and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, to any products sold or distributed through the Site, or to any aspect of your relationship with The Mighty, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or The Mighty may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH The Mighty, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST The Mighty ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST The Mighty IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Incorporating Services, Ltd., 3500 S Dupont Highway, Dover, Delaware 19901. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, The Mighty will pay them for you. In addition, The Mighty will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, The Mighty will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and The Mighty. The arbitration proceeding 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 arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 us.
- Waiver of Jury Trial. YOU AND The Mighty HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and The Mighty are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address at Mighty Proud Media, Inc., 210 N Glenoaks Blvd. Suite C, Burbank, CA 91502, or email address at [email protected] within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your The Mighty username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with The Mighty.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if The Mighty makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to The Mighty.
- General Provisions.
- Electronic Communications. The communications between you and The Mighty use electronic means, whether you visit The Mighty Properties or send The Mighty emails, or whether The Mighty posts notices on The Mighty Properties or communicates with you via email. For contractual purposes, you (1) consent to receive communications from The Mighty in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that The Mighty 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.
- Release. You hereby release The Mighty 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 your use of The Mighty Properties, including but not limited to, any interactions with or conduct of other Users or third-party Sites of any kind arising in connection with or as a result of the Terms or your use of The Mighty 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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a The Mighty Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without The Mighty’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. The Mighty 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.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to The Mighty Properties, please contact us at: The Mighty, 210 N Glenoaks Blvd. Suite C, Burbank, CA 91502, or at [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and The Mighty agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in California.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA 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 THESE TERMS.
- Notice. Where The Mighty requires that you provide an email address, you are responsible for providing The Mighty with your most current email address. In the event that the last e-mail address you provided to The Mighty is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, The Mighty’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to The Mighty at the following address: 210 N Glenoaks Blvd. Suite C, Burbank, CA 91502. Such notice shall be deemed given when received by The Mighty by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- 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.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer The Mighty Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained The Mighty Properties, and any other applicable laws. In particular, but without limitation, The Mighty 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 Persons List or Entity List. By using The Mighty Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use The Mighty 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 The Mighty are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer The Mighty products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- 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.
- 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