USERS. You may simply browse the Site, or you may register with MobileFramers LLC and create an “Account.” You do not have to have an Account to order Products. You must, however, only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
ACCOUNTS. If you set up an Account, you are required to provide your name and email address and select a password (collectively, your “Account Information”) which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms. In no event and under no circumstances will MobileFramers LLC be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of MobileFramers LLC under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else’s Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity.
Procedures for Placing an Order: Unless otherwise specified on the Site, Orders through our Site are made through the following process:
When you place an Order on our Site for a specific Product(s), you will select your Products and provide your Payment information to MobileFramers LLC as set forth below. MobileFramers LLC will process your payment at the time that you place your Order.
The item that you wish to have framed is referred to herein as your “Artwork.” You may either send us a digital copy of your Artwork or the actual Artwork.
If you are providing MobileFramers LLC with a digital copy of your Artwork (the “Digital Artwork”), please upload the digital file of the Artwork to the Site. MobileFramers LLC will print such Artwork and frame such Artwork solely according to your specifications as set forth on the Site. Please note that MobileFramers LLC may choose to not complete your Order for any reason, including without limitation, if MobileFramers LLC believes that you do not have the proper ownership rights to reproduce the Digital Artwork. In such case, MobileFramers LLC will cancel your Order and refund any payments made by you. If you are providing MobileFramers LLC with a non-digital copy of your Artwork, you can mail to us in your own packaging or MobileFramers LLC will send you packaging material for you to package your Artwork and send such Artwork to MobileFramers LLC to be framed.
Upon your receipt of the packaging materials, please properly package your Artwork in accordance with the instructions set forth in such materials or as otherwise specified on the Site. Please send back to us your Artwork in such packaging Materials and in accordance with the delivery instructions provided to you by MobileFramers LLC. In the event that MobileFramers LLC has not received your Artwork within ninety (90) days of the date that you placed your Order, MobileFramers LLC will consider your Order cancelled. MobileFramers LLC will refund the amount of your payment for such Order, less a $10.00 shipping and handling fee which will be retained by MobileFramers LLC.
Upon receipt of your Artwork, MobileFramers LLC will frame your Artwork using the Products set forth in your Order. In the event that MobileFramers LLC is not able to complete your Order for any reason, MobileFramers LLC will return to you your Artwork and refund any payments made by you.
Following completion of the framing of your Artwork, MobileFramers LLC will send to you your framed Artwork (the “Final Product,” which constitutes a Product under these Terms). The Products are subject to MobileFramers LLC’ then-current return policy, as posted on the Site.
Acceptance of Your Order: Your placement of an Order through our Site is an offer to purchase the Product(s) and/or Services ordered and we may accept your Order by processing your payment and shipping the Final Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. No Order will be considered accepted by MobileFramers LLC until the Final Product(s) has been shipped to you. If some of the Products in your Order are temporarily out of stock, we will ship the available Products only and notify you of any Products that cannot be fulfilled. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your Order, without prior notice to you, to supply less than the quantity you ordered of any item. Your Order will be deemed accepted by MobileFramers LLC upon our delivery of the Final Products that you have ordered. We may require additional verifications or information before accepting any Order. All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when MobileFramers LLC provides the Product(s) to a common carrier.
Shipping of Orders: Any estimated shipping date provided by MobileFramers LLC is based on the date that MobileFramers LLC receives your Artwork from you, Product availability and payment processing time, and does not include transit time. MobileFramers LLC only ships currently to addresses in the United States.
PAYMENT. To pay for an Order, you will need to provide MobileFramers LLC with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
PRICING AND PRODUCTS. We make efforts to display our Products and their colors as accurately as possible. The color of the Products that you see displayed on your computer or other device will depend upon your monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the Products. Products displayed may be out-of-stock or discontinued, and prices are subject to change. We cannot confirm the price of an item until you place an Order. In addition, in the event that we receive your artwork and we determine that the Product that you have ordered will not work for your Artwork, we will communicate with you to determine if you would like to change your Order to a different Product. In the event that you change your Order, the price of your Order will likely change. You authorize us to charge your payment method for any changes to your Order that you have approved. Despite our best efforts, a small number of the items on our Site may be mispriced. We are not responsible for typographical errors regarding price or any other matter. Unless otherwise noted on the Site at the time of your Order, all prices include shipping and handling. Unless otherwise set forth on the Site, the prices do not include sales taxes or any other taxes that we are required to add to your Order. Such taxes will be added to your total purchase price, if applicable.
Third-Party Materials. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for MobileFramers LLC to monitor such materials and that you access these materials at your own risk.
USER SUBMITTED MATERIALS. Any materials submitted by you to MobileFramers LLC, including, without limitation, your Artwork, photographs, images, text, graphics and other materials (collectively, “User Submitted Materials”) are subject to the following terms and conditions:
You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials in all media existing now or created in the future, as we deem necessary to enable you to use the Service to create, produce and purchase Products and in connection with the production or provision of any Product or Service you request or to show you how your User Submitted Materials would appear in our Products or Services. For example, when you place an Order for a Product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for framing, packaging and shipment.
Please note that, while you retain ownership of your User Submitted Materials, any template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through our Sites are not proprietary to you, and the rights to such template or layout will remain with us.
You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your User Submitted 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 consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual’s likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such User Submitted Materials.
You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Submitted Materials (including, without limitation, suspending processing and shipping of any Order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable Products or Services, to enforce these Terms or to comply with legal obligations or governmental requests.
You agree to indemnify and hold us, our directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third party users harmless from and against any and all claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys’ fees) that arise directly or indirectly out of or from: (i) your User Submitted Materials; and (ii) an actual or alleged infringement or violation of any third party’s rights with respect to such User Submitted Materials.
You agree that you, not MobileFramers LLC, are responsible for all of Your User Submitted Materials.
We may, in our sole discretion, determine whether Your User Submitted Materials comply with such instructions and are satisfactory for use in our Services. User Submitted Materials that violate these Terms may be removed from our Site; provided, however, that we have no obligation to remove User Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal or non-removal of any User Submitted Materials from our Site.
RULES REGARDING INFORMATION AND OTHER CONTENT. When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call “Content.” You agree not to revise Content posted by others, and you represent and warrant that you will not use any Content in any manner or submit any User Submitted Materials or other Content that:
General Rules of User Conduct. It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
USE OF PRODUCTS BY MOBILEFRAMERS LLC. From time to time, MobileFramers LLC may request your consent for MobileFramers LLC, its affiliates and partners to use photographs and other reproductions of Products ordered by you or provided to you, including Products that contain your User Submitted Content, and other materials supplied by you to MobileFramers LLC in MobileFramers LLC’ marketing materials, publicity, and other materials and on the Site. In such event, MobileFramers LLC will seek your consent prior to such use. If you provide us with your consent, MobileFramers LLC, its affiliates and partners will have a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of to use, reproduce, distribute, create derivative works of and publicly display, photographs and reproductions of such Products and other materials in all media existing now or created in the future to market our Products, Services and Site and for such other purposes as we may determine.
MODIFICATIONS TO AND DISCONTINUANCE OF THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgment of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY MOBILEFRAMERS LLC “WITH ALL FAULTS” AND ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. MOBILEFRAMERS LLC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE CONTENT, PRODUCTS OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE PRODUCTS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE TOTAL AMOUNT OF THE ORDER GIVING RISE TO OUR LIABILITY AND (II) TEN DOLLARS (U.S. $10.00).
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.
Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances WILL WE or our partners be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
LIMITED REMEDY FOR LOSS OF YOUR ENTIRE ORDER
MobileFramers LLC only assumes the risk of loss of your ENTIRE ORDER from the time that MobileFramers LLC actually receives your ENTIRE ORDER until the time that MobileFramers LLC delivers YOUR ORDER to a third party carrier for transport. Provided, however, MobileFramers LLC does not assume such risk of loss for your ENTIRE ORDER, if, after receiving YOUR ORDER from any third party carrier, MobileFramers LLC discovers that any or all of the contents OF YOUR ORDER is damaged or lost. If MobileFramers LLC loses Your ENTIRE ORDER during the limited period that YOUR ORDER is under MobileFramers LLC’ sole custody and control, you acknowledge and agree that your sole and complete remedy for any such loss is, at MobileFramers LLC’ option, (i) MobileFramers LLC replacing such ORDER, (ii) MobileFramers LLC’ payment to you in the amount of the ORDER, or (iii) MobileFramers LLC’ payment to you in the amount of up to THREE HUNDRED dollars ($300.00). You bear all responsibility of loss OR DAMAGE of your ORIGINAL Content while the ORIGINAL ARTWORK is not under MobileFramers LLC’ sole custody and control. Warranties only apply if YOU HAVE USED THE PACKAGING PROVIDED BY MOBILEFRAMERS LLC AND FOLLOWED MOBILEFRAMERS LLC’ INSTRUCTIONS FOR PACKAGING.
Procedure for Making Claims of Copyright Infringement. While MobileFramers LLC is not obligated to review Your User Submitted Materials for copyright infringement, MobileFramers LLC is committed to protecting copyrights and expect users of our Site and Applications to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Site or Applications infringes your copyright, you (or your agent) may send MobileFramers LLC a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow MobileFramers LLC to locate the material on our Site and Applications; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send MobileFramers LLC a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding the Site and Application should be sent to:
Attn: Copyright Agent
TRADEMARKS & COPYRIGHT NOTICE. The trademarks, logos and service marks displayed on the Site are the property of MobileFramers LLC or its licensors. Unless otherwise specified, all information and screens appearing on this Site including all materials, documents, services, site design, text, graphics, logos, images and icons, as well as the selection and arrangement thereof, are the sole property of MobileFramers LLC, Copyright © 2020 MobileFramers LLC, Inc. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without MobileFramers LLC’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Dispute Resolution. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider” ) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, MobileFramers LLC may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from D.C. law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations, and statutes that are applicable to your use of the Site and/or Services.
Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and MobileFramers LLC must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR MOBILEFRAMERS LLC MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, MobileFramers LLC will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) MobileFramers LLC also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. 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 will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 17 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by D.C., law or United States federal law.
Notwithstanding the foregoing, either you or MobileFramers LLC may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the local or federal courts located in Washington, D.C. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the local or federal courts located in Washington, D.C., in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Washington, D.C. for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of (1) and (2) in this Dispute Resolution section above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (1) or (2) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor MobileFramers LLC shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in local or federal court in Washington, D.C.. By using the Site and/or Services in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the District of Columbia, 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.
Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English.
Export Control. You may not use, export, import, or transfer any Products or MobileFramers LLC materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Products or MobileFramers LLC materials, and any other applicable laws. In particular, but without limitation, the Products or MobileFramers LLC materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Products or MobileFramers LLC materials, 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 Products or MobileFramers LLC materials 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 MobileFramers LLC 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 MobileFramers LLC products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Release. You hereby release the MobileFramers LLC 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 Site and/or Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Site and/or Services. 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.”
Notice. In the event that the last e-mail address you provided to MobileFramers LLC is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, MobileFramers LLC’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to MobileFramers LLC at the following address: email@example.com. Such notice shall be deemed given when received by MobileFramers LLC 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 provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
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.