Term of Use
Effective Date: Jan 1, 2020
- Acceptance of this Agreement
Acceptance Through Using or Accessing our Service. Please review the following terms carefully. By accessing or using our Service (or by clicking on “accept” or “agree” to this Agreement when prompted), you agree to be bound by the terms and conditions of this Agreement on behalf of yourself or the entity or organization that you represent. If you do not agree to the terms and conditions of this Agreement, you may not use or access our Service and must exit the Website or Apps immediately.
Eligibility Requirements to Use or Access our Service. You must be at least 18 years old and a resident of the United States to use our Service. By accessing or using our Service, you represent and warrant that you meet all the foregoing eligibility requirements. You also represent and warrant that you have the right, authority, and capacity to enter into this Agreement on your behalf of the entity or organization that you represent. If you do not meet all these requirements, you may not use or access our Service.
Changes to this Agreement. MIQ reserves the right to change this Agreement from time to time in its sole discretion without notice to you. The latest version of the Agreement will be posted on the Website and should be reviewed prior to accessing or using our Service. All changes will be effective immediately when posted on the Website and will apply to your use of and access to our Service from that point onward. Your continued use of or access to our Service following any changes to this Agreement shall constitute your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes. You should check this page frequently so that you are aware of any changes since they are binding on you.
Please refer to and carefully read the class action waiver provisions and binding arbitration clause in the dispute resolution section of these terms. It affects how disputes are resolved.
2. Our Service
Description. The MIQ Service is a maintenance management tool for restaurant or commercial facility owners, managers and staff to make their work more productive. The Service includes (i) MIQ software, systems, suggested procedures, processes and technologies, and (ii) any applications, reports, data, and other content made available by or on behalf of MIQ. The Service does not include any software application or service that is provided by you or a third party, which you use in connection with the Service. This Service does not include your User Data or User Content as later defined in this Agreement. Any new features and any modifications added to the Service are also subject to this Agreement. MIQ reserves the right to modify or discontinue the Service or any functionality or feature thereof at any time without notice to you. All rights, title and interest in and to the Service and its components, including all intellectual property rights, will remain with and belong exclusively to MIQ.
Trial Period. We may offer limited pre-subscription trials (“Trial Period”) to potential subscribers and individual users. When you are using our Service on a trial, you are authorized to use our Service for a limited period of time, all as determined by us in our sole discretion. All users of the trial services are subject to the same terms and use restrictions as subscription users.
Paid Subscription Service (“Subscription”). If you elect to continue to use our Service after the Trial Period, you agree to pay us in accordance with our terms of sale, pricing, payment and billing policies as applicable. MIQ may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. You authorize MIQ to charge your credit card for all fees and charges incurred in connection with your use of our Service, including other third-party fees. If you register with us, you may cancel your account at any time; however, there are no guarantees for a full refund for cancellation. In the event that MIQ suspends or terminates your account or this terms of service, you understand and agree that you shall receive no refund or exchange for any Service, any unused time or service on a subscription, any subscription fees for any portion of the Service, any content or data associated with your account, or for anything else. MIQ reserves the right to issue a partial or full refund at its sole discretion on a case-by-case basis.
- Access and Use
MIQ grants user a non-transferable, non-exclusive, limited, personal, non-sublicensable right to use the Service, including the underlying software and technology, solely for the user’s own internal business, subject to the terms of this Agreement. Subject to the terms of this Agreement, user grants to MIQ a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, license and right to use, copy, store, transmit and display User Data to the extent necessary to provide the Service.
The rights granted to you in this Agreement are subject to the following restrictions: (i) you shall not sell, license, lease, rent, assign, transfer, distribute, host, or otherwise commercially exploit the Website or Service; (ii) you shall not make derivative works of, modify, disassemble, reverse compile or reverse engineer any part of the Website or Service; (iii) you shall not access the Website or Service in order to build a competitive Service; and (iv) except as expressly stated herein, no part of the Website or Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
Furthermore, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal use) from our Service without our prior written permission and the appropriate third party, or except as otherwise allowed under this Agreement, as applicable; (iii) interfere or attempt to interfere with the operation of our Service or any activities conducted on our Service; or (iv) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any viruses, worms, malware, spyware, or any other code of a disruptive or destructive nature.
You understand that MIQ may issue upgrade versions of our Apps and you consent to receiving automatic upgrades on your mobile devices. You also acknowledge and agree that standard carrier data charges may apply to your use of the Apps or the Website including, without limitation, text messages. Any future release, update, or other addition to functionality of the Website or Service shall be subject to these Terms.
- Registration and Accounts
To access the Service you will be required to register for an account. When you register for an account, you will be required to provide us with some information about yourself and or your company or employer or employees. Some of this information may be of a confidential nature and may include personal identifying information (such as names, phone numbers and emails) and/or financial or credit card information (all “Your Information”).
By providing your phone number, you agree to receive text messages from MaintainIQ. Message and data rates may apply. Message frequency varies.
- Account Responsibilities
You are entirely responsible for maintaining the confidentiality of your password and account. You are also entirely responsible for any and all activities associated with your account. Your account is personal to you and you agree not to provide any other person with access to the Service or any portions of it using your username, password, or other security information. You should ensure that you exit from your account at the end of each session. You should use extra caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
You may not transfer your account to anyone else without our prior written permission. You agree to notify MIQ immediately of any actual or suspected unauthorized use of your account or any other breach of security. MIQ will not be liable for any losses or damages arising from your failure to comply with the above requirements. You will be held liable for losses or damages incurred by MIQ or another party due to someone else using your account or password.
You must keep your email address, phone number and, where applicable, your contact details and payment details associated with your account current and accurate.
The MIQ Service is provided by Subscription. For any purchaser of our Service, you select the subscription term and billing interval from among the options we offer when you purchase your Subscription through our online purchasing process. The initial rate for your Subscription is as set forth on our Website, which rates may be updated from time to time as disclosed on the Website. Please refer to our Website for the most current rates and terms, which are incorporated into this Agreement by reference.
Upon completing registration and processing payment for a Subscription, your credit card or other selected payment method will be billed for the Subscription on a recurring basis at the then-current rate and terms for the interval you selected. Your Subscription will renew and be billed automatically unless canceled before such renewal.
You grant MIQ and its third-party payment processors the permission to charge your credit card for the then-current rate of the Subscription on an ongoing basis until cancelled by you. You agree not to dispute any charge or institute any chargeback for a Subscription you have purchased. Fees by MIQ are exclusive of all taxes, levies, or duties imposed by taxing authorities, and user shall be responsible for payment of all such taxes, levies, or duties.
Pricing is subject to change without notice. You may cancel your Account or Subscription at any time. No refunds will be available. However, MIQ reserves the right to issue a partial or full refund at its sole discretion on a case-by-case basis. To cancel your Subscription or Account, you must email firstname.lastname@example.org to cancel your subscription. MIQ reserves the right to suspend or terminate user’s access to the Service if a user’s account becomes thirty (30) days or more delinquent. Users may not share their Subscription with any other user.
- Our Intellectual Property Rights
This Agreement is not a sale and does not convey any title or rights of ownership to you in or related to the Service or any of the hardware, software, technology or other items we use to provide the Service or under any of our or our licensors intellectual property rights (collectively “MIQ Technology”). As between MIQ and you, MIQ or its licensors own and reserve all right, title and interest in and to the MIQ Technology, other than the rights explicitly granted to you to use the Service in accordance with these Terms. All rights not explicitly granted to you are reserved by MIQ.
Our names, videos, logos, graphics, page headers, scripts, button icons, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”), are owned by MIQ. You may not use the Proprietary Marks without our prior written permission. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Service. Any third-party names, trademarks, and service marks are the property of their respective owners.
The information, advice, data, software and content viewable on, contained in, or downloadable from our Service (collectively, “Our Content”), including, without limitation, all text, charts, graphics, photographs, pictures, images, videos, icons, line art and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers. We also own a copyright of a collective work in the selection, coordination, presentation, arrangement, display and enhancement of Our Content (the “Collective Work”).
All software and technology used on, or within our Service, is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the Our Proprietary Marks, Our Content, the Collective Work or Our Technology for purposes that are contrary to the terms and conditions of this Agreement.
- User Data and User Content
“User Data” means, without limitation, any data, information or material provided or submitted by you to MIQ in the course of utilizing the Service. “User Content” means, without limitation, any messages, texts, notes, digital files (such as contracts, receipts or invoices), images, photos, videos, audio, comments, feedback, suggestions, reviews and documents, or other content you upload, transmit or otherwise make available to MIQ and its users via the Service.
All User Data and User Content submitted by user to the Service shall remain the sole property of user. By submitting User Data or User Content on or through the Service, you represent that you possess all necessary intellectual property rights to, and hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, and display all or any portion of the User Data or User Content in connection with MIQ providing the Service and perform its obligations hereunder.
You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, copyright or license of all of your User Data and User Content. In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Data and User Content, including the ability to transmit, manipulate, process, store and copy User Data and User Content in order to provide our Service to you and for the other purposes permitted hereunder. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
MIQ expressly disclaims any liability for the loss or damage to any User Data or User Content or any losses or damages you incur as a result of the loss or damage of any User Data or User Content. It is your responsibility to back-up any User Data and User Content to prevent its loss.
We are not responsible for the authenticity, accuracy, appropriateness, or legality of User Data or User Content. MIQ reserves the right to withhold, remove, return and/or discard User Data or User Content at any time without notice for any reason or no reason, including without limitation as a result of your nonpayment for Services or any other breach of this Agreement.
- Data Storage
MIQ reserves the right to establish or modify its general practices and limits concerning storage of User Data and User Content. MIQ reserves the right to provide and require an additional charge for data storage that exceeds the current maximum capacity available for an individual user. In the event that you terminate your Subscription, MIQ will, upon your written request received by us within 30 days of the termination notice, use commercially reasonable efforts to provide you with a digital file of your User Data and User Content.
Upon expiration or termination of your Subscription, your right to access, or use, User Data or User Content immediately ceases, and MIQ shall have no obligation to maintain or forward any User Data or User Content except as required to provide you with a digital file upon your request as provided above and may delete the same 30 days after expiration or termination.
- Suspension and Termination of Service
We reserve the right to suspend or terminate the Service, your Subscription or your access to the Service for your Material Breach (as defined below) or for any other reason, without notice, at any time. Upon termination or suspension by MIQ, your access to the Service shall terminate or be suspended and we will not be liable in respect of any damage caused by such termination or suspension.
You can terminate your Subscription at any time. Upon termination of your Subscription, all licenses and other rights granted to you in these Terms will immediately cease. Upon termination or suspension of your Subscription, you will not be entitled to any refund of unused fees; provided that upon our termination or suspension of your Subscription for a reason other than your Material Breach we may, at our sole discretion, issue a refund for the unused portion of your Subscription, although we have no obligation to do so.
We reserve the right to refuse access to the Service to anyone for any reason at any time.
- Breach of Terms
Any breach or failure by you to comply with the terms of this Agreement, including without limitation failure to pay for your Subscription as required hereunder, or any unauthorized use of the Service, shall be a material breach (“Material Breach”) of this Agreement.
Upon a Material Breach, MIQ, in its sole discretion, may terminate user’s password, account or use of the Service without any liability to the user. User agrees and acknowledges that MIQ has no obligation to retain your User Data and User Content, and may delete such User Data and User Content, in the event of your Material Breach.
- Interruption of Service
Your access and use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that we, in our sole discretion, may elect to take.
You agree that we will not be liable to you or to any third party for any interruption of the Service or any part thereof.
- Third Party Links, Service and Content
You acknowledge that we are not responsible for such third-party content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third-party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.
- Electronic Communications and Notice
When you use our Service, you consent to communicating with us electronically. You also consent to receive communications from us electronically by email, text, SMS or otherwise. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email, telephone, text, SMS or by posting notices on our Service.
You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Notice by MIQ to the user, or by the user to MIQ, as required by any terms of this Agreement, shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class) or 12 hours after sending by email.
- Electronic Transactions
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in-application purchases and other financial transactions. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions.
Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this website, including in-application purchases, financial transactions, notices of cancellation, policies, contracts, and applications.
Violating the security of our Website, App or Service is prohibited and may result in criminal and civil liability. MIQ may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to scan, probe, or test the vulnerability of the Service or Website or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
- Copyright Policy
We reserve the right to remove any User Content on the Service which allegedly infringes another person’s copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Service or remove, edit, or disable any User Content on the Service which allegedly infringes another person’s copyright. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”).
- DISCLAIMERS; LIMITED WARRANTIES
OUR CONTENT AND ALL SERVICE ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICE OR THE INFORMATION, CONTENT, MATERIALS OR SERVICE INCLUDED ON OR ASSOCIATED WITH OUR SERVICE.
YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICE AND ALL PRODUCTS AND SERVICE INCLUDED ON OR ASSOCIATED WITH OUR SERVICE IS AT YOUR SOLE RISK.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SERVICE.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICE.
WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE SECURITY, ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICE AND PRODUCTS ASSOCIATED WITH OUR SERVICE, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICE AND PRODUCTS ASSOCIATED WITH OUR SERVICE.
WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT OR SOFTWARE THAT MAY BE AVAILABLE FOR DOWNLOADING FROM OUR SERVICE IS FREE OF INFECTION FROM ANY VIRUSES, MALICIOUS SOFTWARE OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY DATA OR CONTENT, INFORMATION OR MATERIAL.
WE MAKE NO REPRESENTATIONS THAT OUR SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS.
WHEN YOU ACCESS OR USE OUR SERVICE FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATIONS OF LIABILITY
IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR SOFTWARE, CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE, APP OR SERVICES, AND INCLUDE, WITHOUT LIMITATION, THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA.
MIQ MAY AT ANY TIME, IN ITS SOLE DISCRETION, DELETE ANY USER CONTENT WITHOUT INCURRING ANY LIABILITY FOR SUCH DELETION OR LOSS RESULTING FROM SUCH DELETION. MIQ EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE LOSS OR DAMAGE TO ANY USER CONTENT, USER DATA, OR ANY LOSSES OR DAMAGES YOU INCUR AS A RESULT OF THE LOSS OR DAMAGE OF ANY USER CONTENT OR USER DATA.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR 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.
OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR ANY ILLEGAL ACTS OR CONDUCT OF ANY USER OR THIRD PARTY.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
You agree that you will be personally responsible for your use of the Service and you agree to defend, indemnify and hold harmless MIQ and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues 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, and in such case, you agree to cooperate with our defense of such claim.
- Dispute Resolution
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with MIQ, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. If MIQ has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Service will be resolved in accordance with the provisions set forth in this Dispute Resolution section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
Applicable Law. You and we agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Service, or any products or services delivered, sold, offered, or purchased through our Service shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of California. You and we agree to submit to the personal jurisdiction of the courts located within California for the purpose of litigating all such claims or disputes. You also agree that: (i) our Service shall be deemed solely based in the State of California; and (ii) our Service shall be deemed passive Service that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of California.
You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of California, or a United States District Court for the State of California. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
- Law Enforcement
MIQ is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If MIQ receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), MIQ may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. MIQ will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
- No Waiver
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and MIQ as a result of this Agreement or your use of the Website or App.
MIQ may assign this Agreement to (i) a parent or subsidiary, (ii) an acquirer of all of the assets of MIQ, or (iii) a successor of MIQ’s interests by merger. This Agreement may not be assigned by you without the prior written approval of MIQ. Any purported assignment in violation of this section shall be void.
- Export Control
You acknowledge that the Service, or portion thereof including, without limitation, our software and technology, may be subject to the export control laws of the United States and administered by the U.S. Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control, and other U.S. agencies. You agree that you will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
- Entire Understanding
If you have questions, comments, or concerns regarding this Agreement or our Service, please contact us at firstname.lastname@example.org.