Term and Condition
Last updated: 1 February, 2022
Agreement to Terms
Please read these Terms carefully before using the Services and feel free to contact us through our contact page with questions. Your use of the Services constitutes your acceptance of and indicates your willingness to be bound by these Terms. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. No rights or licenses are granted except as expressly set forth herein.
Changes to Terms or Services
AppMySite reserves the right to change or suspend any aspect of the Services at any time including, but not limited to, the nature of the Service offered. In addition, we reserve the right to change the Terms at any time, at our sole discretion. If we do so, we'll let you know either by posting the modified Terms on the Site and updating the “Last Updated” date above or through other communications. It's important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms, then you may not use the Services anymore. We also reserve the right to permit or restrict any user's access to part or all of the Services at any time, and for any reason, at our sole and absolute discretion.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND APPMYSITE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY THE “DISPUTE RESOLUTION” SECTION BELOW FOR DETAILS REGARDING ARBITRATION.
Using the Services
Users who have registered into our Services by creating an account (“Account”) can create mobile applications (“Apps”) using our Services. If you are a registered Account holder, AppMySite provides you (subject to your compliance with the Terms), access to its proprietary tools and compiled codes (collectively, the “Tools”) to help build your App through the Services (“Your App”). You may also preview Your App on your AppMySite account & mobile phone through the functionality of our Services. These Terms also govern your general use of and interaction with the Site.
Who May Use the Services
You may use the Services only if you are 13 years or older (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you'll have to create an Account. You can do this through your account with certain third-party social networking services such as Google & Facebook (an “SNS Account”), or directly via the Site. Accounts created through the SNS Account option will be created by extracting from such SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It's important that your Account information is accurate, complete, and up-to-date and you agree to update such information, as needed, to keep it accurate, complete, and up-to-date. If you don't, we might have to suspend or terminate your Account. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by contacting us through our contact page. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content Rights and Licenses
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, algorithms, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services (including without limitation, the Tools); and (ii) “User Content” means any Content that Account holders (including you) provide through the Services, including any Content (other than the Tools and any other Content that we provide to you) that you include in Your App. Content includes without limitation, User Content.
Ownership, Responsibility, and Removal
We and our licensors solely own all right, title and interest in and to the Services and Content (including without limitation, the Tools) and all intellectual property rights therein. Subject to our and licensors’ rights in the Services and Content, and the rights of any third parties in any third-party plugins included in Your App in connection with your use of the Services, you own all right, title and interest in Your App and your User Content. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through the Services, you hereby grant to AppMySite a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content. If you contribute or submit User Content to the AppMySite community, you acknowledge that such User Content is not confidential and agree that we are free to use it without any restriction or compensation to you. You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have (and will have) all rights that are necessary to grant us the license rights in your User Content granted under these Terms; (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by AppMySite on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. For purposes of clarity, the representations and warranties regarding User Content in this paragraph apply to any and all User Content (if any) used by you in connection with creation of Your Apps using the Services.
Rights in Content Granted by AppMySite
Subject to your compliance with these Terms, AppMySite grants you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Content solely in connection with your permitted use of the Services and solely for your internal business purposes.
Rights and Terms for the AppMySite Apps
Rights in the AppMySite Apps Granted by AppMySite
Subject to your compliance with these Terms, AppMySite grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the AppMySite App on a mobile device that you own or control and to run such copy of the AppMySite App solely for your own personal non-commercial purposes. You may not copy the AppMySite App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the AppMySite App; (ii) distribute, transfer, sublicense, lease, lend or rent the AppMySite App to any third party; (iii) reverse engineer, decompile or disassemble the AppMySite App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the AppMySite App available to multiple users through any means. AppMySite reserves all rights in and to the App not expressly granted to you under these Terms.
Additional Information: Apple App Store
This section applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the AppMySite Apps. In the event of any failure of the AppMySite Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price paid for the AppMySite Apps to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the AppMySite Apps. Apple is not responsible for addressing any claims by you or any third party relating to the AppMySite Apps or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the AppMySite Apps fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the AppMySite Apps infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. 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 must also comply with any applicable third-party terms of service when using the AppMySite Apps.
General Prohibitions and AppMySite’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services or any individual element within the Services, AppMySite’s name, any AppMySite trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without AppMySite’s express written consent;
- Access, tamper with, or use non-public areas of the Services, AppMySite’s computer systems, or the technical delivery systems of AppMySite’s providers;
- Attempt to probe, scan or test the vulnerability of any AppMySite system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by AppMySite or any of AppMySite’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than: (i) the software and/or search agents provided by AppMySite, (ii) Your App and (iii) other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a AppMySite trademark, logo URL or product name without AppMySite’s express written consent;
- Use the Services or Content, or any portion thereof in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we're not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
The Apps Hosted On Our Services
You may download Your App from the Services whenever you wish or delete it or any of your User Content at any time by using the delete option provided to you within your account on our Site. AppMySite does not maintain a backup of any deleted Apps and therefore restoration is impossible. If your Account has not been active for a period of 12 months, we retain the right to deactivate your account after 30 days of sending you a notice thereof. AppMySite is not liable or accountable if Your App becomes unavailable to you either because of server failure, deactivation of an Account or for any other reason. If you violate any of these Terms, AppMySite retains the right to remove and permanently delete Your App from our servers.
The Digital Millennium Copyright Act ("DMCA")
AppMySite respects copyright law and expects its users to do the same. It is AppMySite’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
You hereby grant to AppMySite a non-exclusive, non-transferable limited right to use your name, trademarks, and logos (collectively, the “Your Marks”) in the production of marketing materials including, showing you as a user and displaying Your App as a mobile application that was developed using the Services. All goodwill developed from the use of Your Marks shall inure solely to your benefit. In addition, you provide AppMySite the right to reproduce, make copies of, publicly display, perform publicly, and use Your App for the limited purpose of demonstrating to our users and customers how you used our Tools to create Your App.
AppMySite may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User Content and data derived therefrom) (“Services Analytics Data”), and AppMySite will be free (during and after the term hereof) to (i) use such information and data for any purpose, including to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other AppMySite offerings, (ii) conduct industry research and publish insights and reports, and (iii) disclose such data solely in aggregate or other de-identified form in connection with its business.
As between you and AppMySite, you agree that AppMySite owns all right, title and interest in and to the Services Analytics Data and Customer Analytics Data collected by or on behalf of AppMySite.
Advertisements Displayed in Your App
Pricing and Payment
AppMySite requires payment of a subscription fee if you upgrade to an AppMySite Premium, Pro, or Starter plan, and you agree to pay such fees.
When you purchase a paid subscription (“Subscription”), you expressly authorize us (or our third-party payment processor) to charge you for such a transaction. We may ask you to supply additional information relevant to your transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a transaction, you authorize us to provide your Payment Information to third parties (e.g. Stripe or PayPal) so we can complete your transaction and to charge your payment method for the type of transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your transaction (such information is included within the definition of Payment Information). By initiating a transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
If you purchase a Subscription, you will be charged the monthly or annual Subscription fee, plus any applicable taxes, and other charges, based on the Subscription plan you select (“Subscription Fee”), at the beginning of your Subscription and on a monthly or annual basis thereafter, at the then-current Subscription Fee.
BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE APPMYSITE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW.
If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you monthly or annually on the anniversary of the commencement of your Subscription, based on the Subscription plan you select, using the Payment Information you have provided until you cancel your Subscription. For annual Subscriptions, AppMySite will send you a reminder with the then-current Subscription Fee no more than sixty (60) days before your annual Subscription term ends, or otherwise in accordance with applicable law. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or AppMySite. Your Subscription continues until cancelled by you or we terminate your access to or use of the premium Services or Subscription in accordance with these Terms.
ONCE A TRANSACTION IS COMPLETE YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME.
But if something unexpected happens in the course of completing a transaction, we reserve the right to cancel your transaction for any reason; if we cancel your transaction we’ll refund any payment you have already remitted to us for such transaction. Without limiting the foregoing, you may cancel your Subscription at any time.
EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION.
To cancel, you can simply downgrade your Subscription to the free plan from within your Account. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription is active and will then terminate without further charges.
AppMySite and you may need to disclose certain non-public information relating to each of our businesses, whether or not marked or identified as “confidential” at the time of disclosure (“Proprietary Information”) in connection with the use and/or performance of the Services. Proprietary Information of AppMySite includes non-public information regarding features, functionality and performance of the Services. AppMySite and you, each as the party receiving the Proprietary Information of the other agree to: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that: (a) is or becomes generally available to the public, or (b) was known or possessed by the receiving party prior to receipt from the disclosing party, or (c) was rightfully disclosed to the receiving party without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of the disclosing party. The receiving party may disclose Proprietary Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will promptly notify the disclosing party and cooperate with it if such disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed). No rights or licenses are granted pursuant to any disclosure hereunder except as expressly set forth herein.
Disclaimer of Warranty / Indemnification / Limitation of Liabilities
THE SERVICES AND CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, EACH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR FREE BASIS OR THAT ANY OR ALL ERRORS WILL BE CORRECTED, OR THAT YOUR APPS CREATED THROUGH THE SERVICES WILL BE APPROVED BY AND PUBLISHED ON ANY APP STORE. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE SERVICES OR ANY CONTENT.
APPMYSITE SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY USER FOR ANY ACTS OF FRAUD, THEFT, MISAPPROPRIATION, TAMPERING, HACKING, INTERCEPTION, PIRACY, MISUSE, MISREPRESENTATION, DISSEMINATION, OR OTHER ILLEGAL OR UNAUTHORIZED ACTIVITIES OF THIRD PARTIES. YOU UNDERSTAND AND EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND THE CONTENT IS AT YOUR SOLE RISK, THAT ANY AND ALL CONTENT, MATERIAL AND DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR PROPERTY (INCLUDING ANY OF YOUR USER CONTENT) OR DAMAGE TO ANY THIRD PARTY OR THEIR PROPERTY ARISING FROM YOUR USE OF THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY THE LAW, NEITHER AppMySite NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA (INCLUDING WITHOUT LIMITATION, YOUR USER CONTENT OR YOUR APP) OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE TOOLS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT APPMYSITE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY THE LAW, IN NO EVENT WILL APPMYSITE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO APPMYSITE FOR USE OF THE SERVICES, TOOLS OR CONTENT OR ONE CENT ($.01), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO APPMYSITE, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APPMYSITE AND YOU.
Term & Termination
These Terms shall commence when you first visit our website or use any feature of the Services, and shall apply to all of your subsequent visits and uses. AppMySite may, at its sole discretion, terminate your access to and use of the Services, with or without cause, immediately, and without notice. You may cancel your account at any time from within your Account. Upon any termination, discontinuation or cancellation of Services or your access thereto, the following provisions of these Terms will survive: Feedback; the first paragraph of Content Ownership, Responsibility and Removal regarding AppMySite's ownership of the Content and Services; Marketing; Analytics; Advertisements and Third Party Content; Disclaimer of Warranty/ Indemnification/Limitation of Liability; Term and Termination; Confidentiality; Dispute Resolution; and General Terms. Upon such termination, discontinuation or cancellation, your right to access or use the Services will immediately terminate. In addition, we may permanently remove or otherwise dispose of Your App and your Account unless we receive, no later than thirty (30) days from the effective date of the expiration or termination of the Services or your Account, a written request for delivering the then-most recent back-up of Your App to you. We will use commercially reasonable efforts to deliver the latest back-up of Your App to you within thirty (30) days of our receipt of such a written request. You will be responsible to pay all reasonable expenses incurred by us in returning Your App to you.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware without regard to its conflict of laws provisions. Except as otherwise expressly set forth in this “Dispute Resolution” section, the exclusive jurisdiction for all Disputes (defined below) that you and AppMySite are not required to arbitrate will be the state and federal courts located in Delaware, and you and AppMySite each waive any objection to jurisdiction and venue in such courts.
Agreement to Arbitrate
You and AppMySite agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not a class, representative or consolidated action or proceeding. You and AppMySite agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and AppMySite are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
As limited exceptions to the “Agreement to Arbitrate” section above, (i) we both may seek to resolve a Dispute in small claims court if it qualifies and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Conducting Arbitration and Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org.) A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Injunctive and Declaratory Relief
Except as provided in the “Exceptions” section above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and 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. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver
YOU AND APPMYSITE AGREE THAT EACH 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 OR REPRESENTATIVE PROCEEDING.
Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this “Dispute Resolution” section shall be null and void.
With the exception of any of the provisions in “Class Action Waiver” section above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
These Terms constitute the entire and exclusive understanding and agreement between AppMySite, Inc. and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between AppMySite and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without AppMySite's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. AppMySite may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by AppMySite under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
AppMySite's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AppMySite. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise