2.1 The Application (including, without limitation, any software, documentation, and local files installed or utilized by the installer application) is owned by FSIM and, with respect to their applicable contributions to the Application, FSIM’s licensors, including content and data providers (collectively, “FSIM Licensors”), and are licensed to you on a non-exclusive, non-sublicenseable, revocable basis, in the United States, on the service where the Application is made available to you, on the terms and conditions set forth herein. This FSIM License defines legal use of the Application and all updates, revisions, substitutions and copies of the Application made by or for you. All rights not expressly granted to you herein are reserved by FSIM or applicable FSIM Licensors.
2.2 You may:
2.3 You may not, and you may not authorize others to:
3.1 The Application is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this FSIM License. FSIM and FSIM’s Licensors own all rights, title, and interest in and to their applicable contributions to the Application. This FSIM License grants you no right, title, or interest in any intellectual property owned or licensed by FSIM, including, without limitation, the Application and FSIM trademarks, and creates no other relationship between you and FSIM or between you and FSIM’s Licensors. 3.2 The Application and its components contain software licensed from FSIM Licensors (“Licensor Software”) which enables the Application to perform certain functions. All rights in and to any third-party data, software, and servers are reserved and remain with the applicable third parties. You agree that such FSIM Licensors and any other third parties may enforce their rights under this FSIM License against you directly in their own name.
4.1 FSIM, in its sole discretion, may elect to provide you with customer support and/or software updates, upgrades, enhancements or modifications for the Application (collectively, “Support”). 4.2 FSIM, in its sole discretion, may elect to use third-party entities to manage the service through which the Application is available, channel partners, associated service providers, airtime service providers and merchants of record (collectively, “Application Partners”). 4.3 Unless terminated by FSIM in its sole discretion, this FSIM License remains in full force and effect while you use the FSIM Application. FSIM may terminate your access to all (or any portion of) the Application at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your access to the Application is terminated by you or FSIM, this Agreement will remain in full force and effect with respect to your past and future use of the Application. If we terminate your access to the Application (or any portion of the Application) you: (1) must immediately cease any and all use of the Application and remove the Application from your device; (2) may not try to access, use or download the Application without FSIM’s prior written approval. You agree that your account is non-transferable. Any rights to the Application terminate upon your death. This FSIM License terminates automatically if you violate any of its terms and conditions. 4.4 FSIM may change, suspend, or discontinue any aspect of the Application including, without limitation, the availability of any Support or Application feature, database, or content at any time without prior notice or liability to you. FSIM may also impose limits on certain Application features or restrict your access to parts or all of the Application or Support without notice or liability. 4.5 FSD reserves the right in its sole discretion to charge fees for use of or access to any aspect of the Application or any feature(s) thereof. You will not be entitled to a refund of any unused portion of such fees or other payments if FSD suspends or terminates your account, and/or access to the Application (or any portion of the Application), due to your breach of this FSD License or violation of Applicable Law, as determined by FSD, in its sole discretion.
5.1 THE APPLICATION AND ANY APPLICATION FEATURE ACCESSED THROUGH THE APPLICATION ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND ANY USE THEREOF IS AT YOUR SOLE RISK AND FSIM DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE APPLICATION. FSIM DOES NOT REPRESENT THAT THE APPLICATION OR ANY APPLICATION FEATURE ACCESSED VIA THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FSIM EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FSIM MAKES NO WARRANTY THAT YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE APPLICATION WILL BE CORRECTED, THAT THE APPLICATION OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE APPLICATION OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH LICENSOR SOFTWARE, APPLICATION PARTNERS, USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL FSIM OR OUR PARENTS, SUBSIDIARIES OR AFFILIATES (“FSIM AFFILIATES”) BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE APPLICATION, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE APPLICATION, ATTENDANCE AT AN FSIM EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE APPLICATION, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE APPLICATION, OR THE CONDUCT OF ANY USERS OF THE APPLICATION, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK. 5.2 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE APPLICATION. User Content, third-party advertisements, Licensor Software, Application Partners and their Third-Party Services do not necessarily reflect the opinions or policies of FSIM or our FSIM Affiliates. 5.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FSIM, OUR FSIM AFFILIATES, FSIM LICENSORS OR APPLICATION PARTNERS, ADVERTISERS, SPONSORS OR APPLICATION PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS (COLLECTIVELY, “COMPANY ENTITIES”), WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE APPLICATION, EVEN IF FSIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FSIM’S AND THE COMPANY ENTITIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO FSIM, FOR THE APPLICATION DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. 5.4 YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF FSIM’S OR COMPANY ENTITIES’ ACTS OR OMISSIONS OR YOUR USE OF THE APPLICATION ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE APPLICATION. THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FSIM HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
6.1 FSIM, including its Company Entities, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and FSIM regarding any aspect of your relationship with FSIM, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and FSIM agrees to give up the right to sue in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and FSIM, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and FSIM in any way related to or concerning this Arbitration Agreement, any other aspect of this FSIM License (including their applicability and their conformance to applicable law), any products or services provided by FSIM, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and FSIM retains the right to sue in small claims court and (ii) each of you and FSIM may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and FSIM also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and FSIM (see paragraph 6.9 of this Arbitration Agreement below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). 6.2 This FSIM License, including, without limitation, the Arbitration Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this FSIM License. 6.3 Any arbitration between you and FSIM will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and FSIM cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of FSIM and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this FSIM License. 6.4 If either you or FSIM wants to arbitrate a Dispute, you or FSIM must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the FSIM Service to which the Notice relates, and the relief requested. Your Notice to FSIM must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067. FSIM will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration Form with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to FSIM at the address listed above to which you sent your Notice of Dispute. 6.5 You and the FSIM acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND FSIM MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) FSIM will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6.6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 6.8 below. 6.6 JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against FSIM, you and FSIM acknowledge and agree to abide by the following: a. If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), FSIM will pay the filing fee on your behalf or reimburse your payment of it. b. If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but FSIM will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator. c. FSIM and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. FSIM will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules. d. FSIM and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules. 6.7 Regardless of how the arbitration proceeds, each of you and FSIM shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions. 6.8 Each of you and FSIM may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under Applicable Law, if you prevail in the arbitration, and if FSIM failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than FSIM’s highest settlement offer to resolve the Dispute, then FSIM will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If FSIM wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a Dispute or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law. 6.9 The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order FSIM to pay any monies to or take any actions with respect to persons other than you, unless FSIM explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless FSIM expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding 6.10 You and FSIM agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
6.11 With the exception of subpart (a) in paragraph (6.5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (6.5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against FSIM must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.