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Terms of Use

Last Updated: March 4, 2014

END USER LICENSE AGREEMENT AND TERMS OF SERVICE

This End User License Agreement and Terms of Service (the “EULA”) is a binding contract between you, an individual user (“you”) and Shared2you, Inc. (“Shared2you”) governing your use of the Powerslyde mobile application (the “App”).  BY INSTALLING OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA.  IF YOU DO NOT AGREE, YOU MAY NOT USE THE APP.  TO HAVE A COPY OF THIS EULA AND THE SHARED2YOU PRIVACY POLICY SENT TO YOU, CONTACT SHARED2YOU AT USERSERVICES@SHARED2YOU.COM.

 

Material Terms:  As provided in greater detail in the EULA (and without limiting the express language of the EULA), you acknowledge the following:

 

·       the App is licensed, not sold to you, and that you may use the App only as set forth in the EULA;

 

·       the use of the App may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;

 

·       you consent to the collection, use, and disclosure of your personally identifiable information in accordance with Shared2you’s Privacy Policy, including with respect to the collection of location information;

 

·       the App is provided “as is” without warranties of any kind and Shared2you’s liability to you is limited;

 

·       disputes arising hereunder will be resolved by binding arbitrationBy accepting the EULA, as provided in greater detail in Section 17 of the EULA, you and Shared2you are each waiving the right to a trial by jury or to participate in a class action;

 

·       the App requires access to the following services on your mobile device: your device identifier, location, contacts, and applications; and

 

·       if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below.

1.     Scope of License.  The App is licensed, not sold, to you for use only under the terms of this license.  Shared2you reserves all rights not expressly granted to you.  Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Shared2you hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use.  You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time.  You may not rent, lease, lend, sell, redistribute or sublicense the App.  You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App.  If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.  The terms of this EULA will govern any updates provided to you by Shared2you that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. 

 

2.     General.

a.      Consideration.  You understand and agree that this EULA is entered into in consideration of your use of the App and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.

 

b.     Changes to this EULA.  The App is owned and operated by Shared2you.  Shared2you reserves the right to revise this EULA in its sole discretion at any time and without prior notice to you other than by posting the revised EULA on the App.  Revisions to the EULA are effective upon posting.  The EULA will be identified as of the most recent date of revision.  Your continued use of the App after a revised version of the EULA has been posted by Shared2you to the App constitutes your binding acceptance of such revised EULA.  Notwithstanding the preceding sentences of this Section 2.b, no revisions to the EULA will apply to any dispute between you and Shared2you that arose prior to the effective date of such revision.

 

c.      Eligibility.  If you wish to use the App on behalf of a company, entity or organization (each, a “Subscribing Entity”), then you must contact Shared2You to obtain a commercial license for the use of the App.  Please e-mail us at info@shared2you.com.

 

d.     Children.  The App is not intended for children under the age of 13.  IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE APP AT ANY TIME OR IN ANY MANNER.  By using the App, you affirm that you are at least 18 years of age.  Shared2you does not seek to gather information from or about children under the age of 13 through the App. 

 

3.     The Service.

 

a.      Your use of the App is subject to the Shared2you Privacy Policy, which is available at https://www.powerslyde.com/privacy-policy/ (the “Privacy Policy”) and is hereby incorporated by reference into this EULA.  By using the App you agree that you have read, understood, and agree to the data collection, use, and disclosure provisions set forth in the Privacy Policy. 

 

b.     Your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms.

 

c.      Service Security.  You are prohibited from violating, or attempting to violate, the security of the App.  Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the App, at Shared2you’s sole discretion.  Shared2you reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the App.

 

4.     Registration and Eligibility.

 

a.      Log In Credentials.  In order to use the App you will have to register for an account.  When registering, you must provide an email address and password.  This information will be held and used in accordance with Shared2you’s Privacy Policy.  You are responsible for maintaining the confidentiality of your log-in credentials in order to use the App, and are fully responsible for all activities that occur through the use of your credentials.  You agree to notify Shared2you immediately of any unauthorized use of your log-in credentials or any other breach of security with respect to your account.  Shared2you will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Shared2you of such unauthorized use or loss of your credentials.  You may be able to register for the App using your credentials from a third party social network (e.g., Facebook).  If you register through such social network, other information from the social network may be provided to Shared2you, as detailed in our Privacy Policy.

 

b.     Accuracy of Information.  You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Shared2you.  You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate.  If messages sent to an email address provided by you are returned as undeliverable, Shared2you reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party. 

 

c.      Sharing with Friends.  Shared2you may offer you the ability to share your applications with friends by sending them an email (such feature, “Sharing With Friends”).  If you choose to use Sharing With Friends, then you can send an e-mail to your friends informing them of your use of the App.  We reserve the right to impose limits on the number of friends you may e-mail at any one time and the amount of text you can include in an e-mail.  You hereby authorize us to facilitate the send of e-mails on your behalf to the extent you wish to use Sharing With Friends. 

 

5.     Third Party Materials

 

a.      You understand that by using the Service, you may encounter data, information, applications or materials from third parties, including other users of the App (“Third Party Materials”) and other content, including content from Shared2you (collectively, “Content”), that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language or other material.  Nevertheless, you agree to use the App at your sole risk and that Shared2you shall not have any liability to you for content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable.  You use the App, and rely upon any Content accessible through the App, at your sole risk.

 

b.     You agree and understand that the App contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the App.  No portion of the App may be reproduced in any form or by any means.  You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the App, in any manner, and you shall not exploit the App in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.  You further agree not to use the App in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Shared2you is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the App. 

 

c.      In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries.  Shared2you makes no representation that such services and materials are appropriate or available for use in any particular location.  To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws.  Shared2you, and its licensors, reserve the right to change, suspend, remove, or disable access to such services at any time without notice.  In no event will Shared2you be liable for the removal of or disabling of access to any such services.  Shared2you may also impose limits on the use of or access to certain services at any time, in any case and without notice or liability. 

 

6.     Your Use of the App and the Content.  You rights to use the App are expressly conditioned on the following:

 

a.      You may access the App for your personal entertainment and informational purposes only, and solely as intended through the provided functionality of the App and as permitted under this EULA.

 

b.     Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the App.

 

c.      Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the App without Shared2you’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Shared2you’s express written consent:

 

                                      i.     altering, defacing, mutilating or otherwise bypassing any approved software through which the App is made available; and

 

                                    ii.     using any trademarks, service marks, design marks, logos, photographs or other content belonging to Shared2you or obtained from the App.

 

d.     You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the App designed to control the manner in which the App is used, harvest or mine Content from the App, or otherwise access or use the App in a manner inconsistent with individual human usage.

 

e.      You agree not to undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the App or Content or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by this EULA, the authorized features of the App or Content, or by law, or otherwise attempt to use or access any portion of the App other than as intended by Shared2you.

 

f.       You agree not to use, display, mirror, frame or utilize framing techniques to enclose the App or the Content, or any portion thereof, through any other application or website, unless and solely to the extent Shared2you makes available the means for embedding any part of the App or the Content.

 

g.     You agree not to access, tamper with, or use non-public areas of the App, Shared2you’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Shared2you’s providers.

 

h.     You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Shared2you employees.

 

i.      You agree not to provide any false personal information to Shared2you.

 

j.      You agree not to create a false identify or impersonate another person or entity in any way.

 

k.     You agree not to create a new account with Shared2you, without Shared2you’s express written consent, if Shared2you has previously disabled an account of yours.

 

l.      You agree not to solicit, or attempt to solicit, personal information from other users of the App.

 

m.    You agree not to restrict, discourage or inhibit any person from using the App, disclose personal information about a third person on the App or obtained from the App without the consent of such person, or collect information about users of the Services.

 

n.     You agree not to use the App, without Shared2you’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.

 

o.     You agree not to gain unauthorized access to the App, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the App.

 

p.     You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the App or communications equipment and computers connected to the App.

 

q.     You agree not to interfere with or disrupt the App, networks or servers connected to the App or violate the regulations, policies or procedures of such networks or servers.

 

r.      You agree not to violate any applicable federal, state or local laws or regulations or this EULA.

 

s.      You agree not to assist or permit any persons in engaging in any of the activities described above.

 

7.     Group Sharing.  The App may allow you to share your applications with several friends (“Group Sharing”) for a fee.  The price for Group Sharing will be displayed on the App.  You are responsible for the payment of Group Sharing, as well as any associated taxes or fees associated with Group Sharing should you choose to enable Group Sharing.  Payments for Group Sharing will be governed by your app store’s terms applicable to in-app purchases.

 

8.     Consent to Use of Data.  You agree that Shared2you may collect and use technical data and related information, including, but not limited to, UDID, UDFA and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the App, and to anonymously track and report your activity inside of the App, including for analytics purposes.  Please see Shared2you’s Privacy Policy for more details regarding the information Shared2you collects, and how it uses and discloses that information.

 

9.     Ownership.  The App, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of Shared2you and its licensors.  Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise.  All rights not expressly granted by a party hereunder are expressly reserved.

 

10.   Feedback.  While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community.  If you choose to contribute by sending Shared2you or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided.  Accordingly, by sending Feedback to Shared2you, you agree that: 

 

a.      Shared2you has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;

 

b.     Feedback is provided on a non-confidential basis, and Shared2you is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and

 

c.      You irrevocably grant Shared2you and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.

 

11.            Termination.  The EULA is effective until terminated by you or Shared2you.  Your rights under this EULA will terminate automatically without notice from Shared2you if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein).  You may terminate this EULA by uninstalling the App.  Upon any termination of the EULA, you must immediately cease all use of the App, and destroy all copies, full or partial, of the App.  You will not be able to use the app without re-registering. 

 

12.            Indemnity.  You agree to indemnify and hold Shared2you, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the App, or Content, or (b) your violation of this EULA.  Shared2you will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Shared2You is unable to communicate with you in a timely manner because of an inactive e-mail address for you, your indemnification obligation will continue notwithstanding Shared2You’s inability to contact you in a timely manner.

 

13.            NO WARRANTY:  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PACKAGE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PACKAGE, AND ANY SERVICES AVAILABLE THROUGH THE PACKAGE, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SHARED2YOU HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PACKAGE AND ANY SERVICES OFFERED BY SHARED2YOU, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  SHARED2YOU DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PACKAGE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PACKAGE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE OR NOT INTERFERE WITH YOUR USE OR ENJOYMENT OF ANY OTHER APPLICATIONS ON THE DEVICE ON WHICH THE PACKAGE IS INSTALLED, OR THAT DEFECTS IN THE PACKAGE WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHARED2YOU OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS EULA.  SHOULD THE PACKAGE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW. 

 

14.            LIMITATION OF LIABILITY.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SHARED2YOU OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PACKAGE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SHARED2YOU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  IN NO EVENT SHALL SHARED2YOU’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

 

15.            THIRD PARTY DISPUTES.  SHARED2YOU IS NOT AFFILIATED WITH ANY CARRIER, OR SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE APP, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE SHARED2YOU (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. 

 

16.            Dispute Resolution.

 

a.      Mandatory Arbitration.   Please read this carefully.  It affects your rights.  YOU AND SHARED2YOU AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE.  Arbitration is more informal than a lawsuit in court.  Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.  Arbitrators can award the same damages and relief that a court can award.  Please visit www.adr.org for more information about arbitration.

 

                                      i.     Commencing Arbitration.  A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Shared2you, to you via any other method available to Shared2you, including via e-mail.  The Notice to Shared2you should be addressed to P.O. Box 44066, Eden Prairie, MN 55344-4066, Attn: Chief Operating Officer (the “Arbitration Notice Address”).  The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”).  If you and Shared2you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Shared2you may commence an arbitration proceeding as set forth below or file a claim in small claims court.  THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT.  The Rules and AAA forms are available online at www.adr.org.  If you are required to pay a filing fee to commence an arbitration against Shared2you, then Shared2you will promptly reimburse you for your confirmed payment of the filing fee upon Shared2you’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee. 

 

                                    ii.     Arbitration Proceeding.  The arbitration will be conducted in the English language.  A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein.  You and Shared2you agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

 

                                   iii.     No Class ActionsYOU AND SHARED2YOU AGREE THAT YOU AND SHARED2YOU 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID

 

                                   iv.     Decision of the Arbitrator.  Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed.  The arbitrator may extend this time limit for an additional 30 days in the interests of justice.  All arbitration proceedings will be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.  The award of the arbitrator shall be in writing and will include a statement setting forth the reasons for the disposition of any claim.  The arbitrator will apply the laws of the State of Minnesota in conducting the arbitration.  You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce.  The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.

 

b.     Equitable Relief.  The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Shared2you seeks equitable relief of any kind.  You acknowledge that, in the event of a breach of this EULA by Shared2you or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Shared2you, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.

 

c.      Claims.  You and Shared2you agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the App, excluding a claim for indemnification, must commence within one year after the cause of action accrues.  Otherwise, such cause of action is permanently barred.

 

d.     Improperly Filed Claims.  All claims you bring against Shared2you must be resolved in accordance with this Dispute Resolution section.  All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed.  Should you file a claim contrary to this Dispute Resolution section, Shared2you may recover attorneys' fees and costs up to $5,000, provided that Shared2you has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

 

e.      Modifications.  In the event that Shared2You makes any future change to the Mandatory Arbitration provision (other than a change to Shared2You’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to Shared2You’s Arbitration Notice Address, in which case your account with Shared2You and your license to use the App shall terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, shall survive the termination of this EULA.

 

f.       Enforceability.  If only Section 17.a.iii  or the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 18  shall govern any action arising out of or related to this EULA.

 

17.            Governing Law.  The laws of the State of Minnesota, excluding its conflicts of law rules, govern this EULA and your use of the App.  Your use of the App may also be subject to other local, state, national, or international laws.  To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in Hennepin County, Minnesota, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.

 

18.            Assignment.  You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of Shared2you.  This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition.  Shared2you may assign this EULA, including all its rights hereunder, without restriction.

 

19.            SurvivalThe provisions of this EULA that are intended to survive the termination of this EULA by their nature will survive the termination of this EULA, including, but not limited to, Sections 3 (The Service), 8 (Consent to Use of Data), 9 (Ownership), 10 (Feedback), 11 (Termination), 12 (Indemnity), 13 (No Warranty), 14 (Limitation of Liability), 15 (Third Party Disputes), 16 (Dispute Resolution), 17 (Governing Law), 18 (Assignment), 19 (Survival), 20 (Consent to Electronic Communications), 21 (Miscellaneous), and 22 (Contacting Shared2you).

 

20.            Consent to Electronic Communications.  By using the App, you consent to receiving certain electronic communications from us as further described in our Privacy Policy.  Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices.  You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

 

21.            Miscellaneous.  This EULA, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Shared2you regarding your use of and access to the App, and, except as expressly permitted above, may be amended only by a written agreement signed by authorized representatives of all parties to these Terms.  The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of this EULA or any provision of this EULA constitute a waiver of any subsequent breach or default or a waiver of the provision itself.  Use of section headers in this EULA is for convenience only and shall not have any impact on the interpretation of particular provisions.  In the event that any part of this EULA is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.  You agree that no joint venture, partnership, employment, or agency relationship exists between you and Shared2you as a result of this EULA or use of the App.

 

22.            Contacting Shared2you.  You can contact Shared2you, Inc.  by email at userservices@shared2you.com, or by U.S. post at P.O. Box 44066, Eden Prairie, MN 55344-4066.

NOTICE REGARDING APPLE.  You acknowledge that this EULA is between you and Shared2you only, not with Apple, and Apple is not responsible for the App or the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.  In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App.  Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to:  (i) product liability claims; (ii) any claim that the App fails 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 the App or your possession and use of the App infringes that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the App.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA.  You hereby 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.   If Shared2you provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version shall prevail.