Mobile Spinach Terms & Conditions
Introduction; Your Agreement to These Terms and Conditions.
The Terms and Conditions (as may be amended from time to time, the “Agreement”) is a legal contract between you, an individual subscriber, customer, member, or user of at least 18 years of age (“you”), and Mobile Spinach, Inc., located at 58 West Portal Ave., #299, San Francisco, CA 94127 (together with its subsidiaries and other affiliates, “Mobile Spinach,” “we” or “us”), regarding your use of the Mobile Spinach service (“Service”), including Mobile Spinach’s proprietary mobile platform (the “Mobile Spinach Platform”). The Mobile Spinach Service consists of the Mobile Spinach Platform and other services, products, software applications, and websites that allow you to receive lifestyle recommendations from Mobile Spinach and its content providers via Short Messaging Service text message (“SMS OR MMS Messages”), email and other communication formats on supported mobile phones, smartphones, home computers and other devices (each, a “Device”). This Agreement also applies to the use of the Mobile Spinach Service by another person for whose use you have agreed to become responsible (an “Authorized User”), if Mobile Spinach agrees to allow you to do so.
You may contact Mobile Spinach through the customer support web page at http://www.MobileSpinach.com/support. For purposes of this Agreement, Mobile Spinach’s business days are Monday through Friday. Holidays are not included.
PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING OR USING THE MOBILE SPINACH PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE AND FOLLOW THE INSTRUCTIONS IN THIS AGREEMENT.
1. Eligibility.
THE SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 18 (EXCEPT AN AUTHORIZED USER) OR TO ANYONE PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY MOBILE SPINACH. By clicking the “I Agree” button or by otherwise downloading, installing, or using the Service, you represent that you are at least 18 years of age and have not been previously suspended or removed from the Mobile Spinach Platform.
2. Service Provider.
Mobile Spinach utilizes community influencers to provide lifestyle recommendations to our consumer user base and does not act in any capacity as your agent. Mobile Spinach acts exclusively as an independent contractor in providing the Service. Mobile Spinach does not have control over or liability for products or services advertised or promoted by third parties via the Service.
3. User Services.
Your Mobile Spinach Account: When you sign up with Mobile Spinach, Mobile Spinach will establish an account (“Account”) that permits you to use the Service. You must select a password (“Password”), and you may choose how and by which Devices you will log into the Service. You must keep your Password confidential and not disclose it to others. Do not keep your Password near your Device. Each person for whom Mobile Spinach establishes an Account, including you, becomes a “User”.
When your Account is established, Mobile Spinach may provide you with a bonus or incentive, subject to the terms and conditions of any bonus or incentive program in effect and made available to you at the time you register. Mobile Spinach reserves the right to terminate any incentive promotional program at any time without notice to you.
4. Consent to Electronic Communications
Because the Mobile Spinach Service is provided electronically, you must consent to Mobile Spinach providing you with information electronically via this website, SMS OR MMS Messages or email if you wish to proceed. Read this notice carefully. You can print a copy for your records.
By proceeding with registration to use the Service:
· you agree to receive information and disclosures electronically on this website and via SMS OR MMS Messages and email and confirm that you will download or print any disclosures for your records;
· you acknowledge that you can access information that is provided electronically at this website and via SMS OR MMS Message or email;
· you are authorizing the delivery of the disclosures regarding the Service electronically on this website and via email where you have provided such information and providing your consent to receive electronic communications;
· you agree to receive SMS OR MMS Messages from Mobile Spinach and its third party content providers; and
· you agree to receive email regarding the Service where you have provided your email address.
You can withdraw your consent by contacting us through http://www.MobileSpinach.com/support. However, you will no longer be able to use the Service. Withdrawing your consent will not affect the validity of transactions already completed or in process. You can obtain a paper copy of an electronic record at a fee by contacting us through http://www.MobileSpinach.com/support. To update your contact information with Mobile Spinach, contact us through http://www.MobileSpinach.com/support.
5. Privacy Policy & Information Sharing.
Your privacy is important to Mobile Spinach. Please read Mobile Spinach’s Privacy Policy carefully for information relating to Mobile Spinach’s collection, use, and disclosure of your personal information. The Privacy Policy is incorporated herein by reference.
Mobile Spinach will disclose information to third parties about your Account and activity:
· in order to complete your requests, and to provide services you have requested (for example, your name or phone number) to senders and recipients;
· in order to verify the existence and condition of your Account for a third party;
· in order to comply with government agency or court orders;
· in order to prevent actual or suspected fraud, or abuse of the Service;
· if you give your permission; or
· as otherwise provided in Mobile Spinach’s Privacy Policy.
When you register to use the Service, and at any time you are a registered user, in any capacity, you also authorize Mobile Spinach, and third parties used by Mobile Spinach, to obtain information in order to prevent fraud and abuse of the Service. This may include capturing information about you and your Device, and comparing that information with databases operated by Mobile Spinach or third parties.
You authorize Mobile Spinach to send You and Authorized Users emails and messages including SMS OR MMS messages regarding Your use of the SERVICE AND Your Account. Mobile Spinach is not obligated to provide such emails or messages to You or any Authorized User.
6. Advertisements and Promotions
You understand and agree that a key part of the Mobile Spinach Platform is to help link you with advertisers whose products and services may be of interest. These advertisements and relationships with such promotional partners are necessary for Mobile Spinach to provide the Service. You also understand and agree that you will not obscure any advertisements from general view via HTML/CSS or any other means. By using the Service, you agree that Mobile Spinach has the right to transmit such advertisements with or without prior notice, and without recompense to you or any other user. The manner, mode and extent of advertising by Mobile Spinach throughout the Service are subject to change at Mobile Spinach’s discretion. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Mobile Spinach shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
7. Software Use
Mobile Spinach software may be made available to you by Mobile Spinach pursuant to the terms and conditions of an end user license agreement. You must carefully read any applicable end user license agreement before you use the Mobile Spinach Platform.
8. Prohibited Conduct.
BY USING THE MOBILE SPINACH PLATFORM YOU AGREE NOT TO:
· use the Service for any purposes other than to send or receive Service-related SMS OR MMS Messages and/or to access the Service in accordance with these Terms and Conditions and as such Service is offered by Mobile Spinach;
· impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Mobile Spinach Accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Service, perform any other similar fraudulent activity or otherwise send or receive what Mobile Spinach reasonably believes to be potentially fraudulent funds;
· infringe Mobile Spinach’s or any third party’s intellectual property rights, rights of publicity or privacy;
· make unsolicited offers, advertisements, proposals, or send junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
· use the Service, or request or make any transfer, for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data protection and privacy;
· defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users of the Service, or otherthird parties without their consent, or use the Service for any commercial use, it being understood that the Service is for personal use only;
· use the Service if you are under the age of eighteen (18) without a parental sponsor in accordance with Mobile Spinach’s rules and guidelines or in any event use the Service if you are under the age of thirteen (13) years old even with a parental sponsor and in accordance with applicable law;
· refuse to cooperate in an investigation or provide confirmation of your identity or any other information you provide to Mobile Spinach;
· remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service or features that enforce limitations on the use of the Service;
· reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of Mobile Spinach software, including without limitation the Mobile Spinach Platform or any part thereof, except and only to the extent that such prohibition is expressly prohibited by applicable law notwithstanding this limitation;
· use the Service in any manner that could damage, disable, overburden, or impair it, including, without limitation, using the Mobile Spinach Service in an automated manner;
· modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent that such prohibition is expressly prohibited by applicable law notwithstanding this limitation;
· intentionally interfere with or damage operation of the Service or any third party’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
· use any robot, spider, other automatic device, or manual process to monitor or copy the Mobile Spinach website without prior written permission;
· use any device, software or routine to bypass Mobile Spinach’s robot exclusion headers, or interfere or attempt to interfere, with the Service;
· sell the Mobile Spinach software or any services, information, or software associated with or derived from it;
· breach this Agreement, the Privacy Policy or any other Mobile Spinach agreement or policy;
· violate any law, statute, ordinance or regulation (for example, those governing sending of unsolicited commercial email or other electronic messages);
· provide false, inaccurate or misleading information;
· send or receive what Mobile Spinach reasonably believes to be potentially fraudulent or deceptive messages;
· use your Account or the Service in a manner that results in or may result in complaints, disputes, reversals, chargebacks, fees, fines, penalties and other liability to you, Mobile Spinach, or a third party;
· Use your Account or the Service in a manner that Mobile Spinach may reasonably believe to be an abuse of the Service or a violation of any applicable industry rules or best practices;
· take any action that may cause Mobile Spinach to lose any of the services from its service providers, or other suppliers;
· control an Account that is linked to another Account that has engaged in any of the foregoing activities. Mobile Spinach may use evidence other than your Account information to determine whether you control an Account in someone else’s name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.
9. Account Passwords and Registration
You agree that the information you provide to Mobile Spinach on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your Account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your Account, PIN, or Password as applicable), then you agree to immediately notify Mobile Spinach.
10. Third Party Sites, Products and Services; Links.
The Service may include links or references to other web sites or services solely as a convenience to Mobile Spinach’s users (“Reference Sites”). Mobile Spinach does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Mobile Spinach Platform are solely between you and such advertiser. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
11. Termination; Agreement Violations.
You agree that Mobile Spinach, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate your Account (or any part thereof) or your use of the Service at any time. Mobile Spinach may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. If your Account is dormant, Mobile Spinach may close your Account. You agree that any termination of your access to the Service or any Account you may have or portion thereof may be effected without prior notice, and you agree that Mobile Spinach will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Mobile Spinach may have at law or in equity.
You may terminate this Agreement at any time by providing written notice to Mobile Spinach.
Upon termination for any reason, you agree to immediately stop using the Service and to uninstall and/or destroy all copies of the Mobile Spinach software, any accompanying documentation, and all other associated materials.
12. Ownership; Proprietary Rights.
The Service is owned and operated by Mobile Spinach and/or third party licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, software, services, and all other elements of the Service provided by Mobile Spinach (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Mobile Spinach, all Materials, trademarks, service marks, and trade names embodied in the Service are the property of Mobile Spinach and/or third party licensors or suppliers. You agree not to remove, obscure, or alter Mobile Spinach’s or any third party’s copyright, patent, trademark, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. Except as expressly authorized by Mobile Spinach, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Mobile Spinach reserves all rights not expressly granted in this Agreement. If you have comments regarding the Service or ideas on how to improve it, please contact customer service. Please note that by doing so, you hereby irrevocably assign to Mobile Spinach, and shall assign to Mobile Spinach, all right, title and interest in and to all ideas and suggestions and any and all worldwide intellectual property rights associated therewith. You agree to perform such acts and execute such documents as may be reasonably necessary to perfect the foregoing rights.
13. Indemnification.
You agree to indemnify, save, and hold Mobile Spinach, its contractors, employees, agents and its third party suppliers, licensors, and partners harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to your use or misuse of the Service, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. Mobile Spinach reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Mobile Spinach, including rights to settle, and you agree to cooperate with Mobile Spinach’s defense and settlement of these claims. Mobile Spinach will use reasonable efforts to notify you of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
14. Disclaimer; No Warranties
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MOBILE SPINACH AND ITS THIRD-PARTY PARTNERS, LICENSORS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOBILE SPINACH OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM “MOBILE SPINACH” INCLUDES MOBILE SPINACH’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY DATA, INFORMATION, THIRD PARTY SOFTWARE, REFERENCE SITES, SERVICES, OR SOFTWARE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. MOBILE SPINACH, AND ITS THIRD PARTY SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE DATA, MOBILE SPINACH SOFTWARE, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
MOBILE SPINACH AND ITS THIRD PARTY SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. .
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE (INCLUDING SMS OR MMS MESSAGES, EMAILS AND RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM AND DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
15. Limitation of Liability and Damages.
IN NO EVENT WILL MOBILE SPINACH OR ITS CONTRACTORS, AGENTS, LICENSORS, PARTNERS, OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS OPPORTUNITIES, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO (I) THIS AGREEMENT, (II) THE SERVICE OR ANY REFERENCE SITE, (III) YOUR USE OR INABILITY TO USE THE SERVICE (INCLUDING ANY AND ALL MATERIALS) OR ANY REFERENCE SITES, OR (IV) ANY OTHER INTERACTIONS WITH ANOTHER MOBILE SPINACH USER IN CONNECTION WITH THE SERVICE, EVEN IF MOBILE SPINACH OR AN MOBILE SPINACH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Mobile Spinach or any of its contractors, employees, agents, third party partners, licensors or suppliers’ total liability to you for all damages, liabilities, losses, and causes of action arising out of or relating to (i) this Agreement, (ii) the Service, (iii) Your use or inability to use the Service (including any and all Materials) or any Reference Sites, or (iv) any other interactions with Mobile Spinach or another user of the Service, however caused and whether arising in contract, tort including negligence, warranty or otherwise, exceed the amount paid by you, if any, for using the portion of the Service giving rise to the cause of action.
YOU ACKNOWLEDGE AND AGREE THAT MOBILE SPINACH HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOBILE SPINACH, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MOBILE SPINACH. MOBILE SPINACH WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such cases, Mobile Spinach’s liability will be limited to the fullest extent permitted by applicable law.
16. Modification of this Agreement.
Mobile Spinach reserves the right to change, modify, add, or remove portions of this Agreement (each, a “change”) at any time by posting notification to any Mobile Spinach web site www.MobileSpinach.com or otherwise communicating the notification to you. The changes will become effective, and shall be deemed accepted by you, twenty-four (24) hours after the initial posting and shall apply on a going-forward basis with respect to payment transactions initiated after the posting date. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Service. For certain changes, Mobile Spinach may be required to give you advance notice, and Mobile Spinach will comply with such requirements.
17. Notice.
Mobile Spinach may provide you with notices and communications by email, regular mail or postings on the Mobile Spinach web site www.MobileSpinach.com or by any other reasonable means. Except as otherwise set forth herein, notice to Mobile Spinach must be sent by first-class mail to:
Mobile Spinach, Inc.
Attention: Legal
58 West Portal Ave. #299
San Francisco, CA 94127
18. Waiver.
The failure of Mobile Spinach to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Mobile Spinach.
19. Governing Law.
This Agreement be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law.
20. Arbitration
In this Arbitration section:
“Claim” means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to this Agreement or the relationship between you and us, and includes claims that are brought as counterclaims, cross claims, third party claims, or otherwise and disputes about the validity or enforceability of this Agreement or the validity or enforceability of this Arbitration section.
Any Claim between you and us shall be resolved, upon the election of either you or us, by binding arbitration administered by the American Arbitration Association (“AAA“) or the National Arbitration Forum (“NAF“), under its rules applicable to consumer disputes (“Rules“). You can obtain the Rules and other information about initiating arbitration by contacting the AAA at 335 Madison Avenue, New York, NY 10017, or at www.adr.org, or the NAF at P.O. Box 50191, Minneapolis, MN 55405, or at www.adrforum.com. Our address for serving any arbitration demand or claim is:
Mobile Spinach, Inc.
Attention: Legal
58 West Portal Ave. #299
San Francisco, CA 94127
If you file a Claim, you can chose either the AAA or the NAF as Administrator; if we file a Claim, we will make the initial selection but you can require us to use either the AAA or the NAF by providing us written notice within thirty (30) days of your receipt of notice of the Claim. Claims will be arbitrated by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years experience. We agree not to invoke our right to elect arbitration of an individual Claim filed by you in a small claims or similar court (if any), so long as the Claim is pending on an individual basis only in such court.
We will pay all filing and administration fees charged by the Administrator and arbitrator fees up to one-thousand dollars ($1,000), and we will consider your request to pay any additional arbitration costs. If an arbitrator issues an award in our favor, you will not be required to reimburse us for any fees we have previously paid to the Administrator or for which we are responsible. If you receive an award from the arbitrator, we will reimburse you for the fees paid by you to the Administrator. Each party shall bear its own attorney’s, expert’s and witness fees, which shall not be considered costs of arbitration; however, if a statute gives you the right to recover these fees, or fees paid to the Administrator, then these statutory rights will apply in arbitration.
Any in-person arbitration hearing will be held in the city with the federal district court closest to your residence, or in such other location as the parties may mutually agree. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. ' 1-16, and, if requested by either party, provide written reasoned findings of fact and conclusions of law. The arbitrator shall have the power to award any relief authorized under applicable law. The arbitrator's award shall be final, except for any appeal that may be permitted under the Federal Arbitration Act. Judgment on any award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction thereof.
Neither you nor we shall have the right to participate as a representative or member of any class of claimants in arbitration, and you and we further agree that claims of third parties shall not be joined in any arbitration between you and us, without the express written consent of both you and us. The validity and effect of this paragraph shall be determined exclusively by a court, and not by the Administrator or any arbitrator. The arbitrator shall have not power to arbitrate any Claims on a class action basis or Claims brought in a purported representative capacity on behalf of the general public, other Users, or other persons similarly situated.
If any portion of this Arbitration section is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this provision. However, if the section precluding class actions is deemed invalid or unenforceable in whole or in part, then this entire Arbitration section shall be deemed invalid and unenforceable. The terms of this Arbitration section will prevail if there is any conflict between the Rules and this provision.
THE PARTIES ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS RESOLUTION OF DISPUTES PROVISION, THEY ARE WAIVING ALL RIGHTS TO A TRIAL BY COURT OR JURY AS A MEANS OF RESOLVING ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT. THEY ACKNOWLEDGE THAT ARBITRATION WILL LIMIT THEIR LEGAL RIGHTS, INCLUDING THE RIGHTS TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED UNDER THE FEDERAL ARBITRATION ACT).
You may reject this Arbitration section, in which case neither you nor we will have the right to elect arbitration. Rejection of this provision will not affect the remaining parts of this Agreement. To reject this Arbitration section, you must send us written notice of your rejection within thirty (30) days after the date that you first became a user of the Service. You must include your name, address, and Mobile Number. The notice of rejection must be mailed to:
Mobile Spinach, Inc.
Attention: Legal
58 West Portal Ave. #299
San Francisco, CA 94127
This is the only way that you can reject this Arbitration section.
The parties acknowledge and agree that this arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act. This Arbitration section shall survive the termination of this Agreement.
21. Severability
If any provision of this Agreement is held to be unlawful, void, invalid or otherwise unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent required, and the remaining provisions will remain valid and enforceable.
22. Assignment
This Agreement, and any rights granted hereunder, may not be transferred or assigned by you without Mobile Spinach’s prior written consent which may be withheld in its sole discretion, but may be assigned by Mobile Spinach without restriction. Any assignment attempted to be made in violation of this provision shall be void and of no effect.
23. Survival
Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration as applied to transfers and relationship prior to such termination or expiration.
24. Headings
The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
25. Entire Agreement
This is the entire agreement between you and Mobile Spinach relating to the subject matter hereof and will not be modified except in writing, signed by both parties, or by a change to this Agreement made by Mobile Spinach in accordance with the terms of this Agreement.