1. SCOPE OF AGREEMENT.
1.1. Terms of Service. These terms of service (“Terms of Service”) govern the access and use of the website www.mogulretail.com, and affiliated websites, features, services, mobile applications, products, software and other services, or any portion thereof (collectively, the “Service”), owned or controlled by Mogul Retail Inc., or its affiliated companies (“Mogul Retail” or “we” or “our” or “us”). Affiliated companies are entities that control, are controlled by or are under common control with Mogul Retail.
2. INTELLECTUAL PROPERTY.
2.1. Marks. The design, trademarks, service marks, and logos of Mogul Retail and the Service (“Mogul Retail Marks”), are owned by or licensed to Mogul Retail, subject to copyright and other intellectual property rights under United States, foreign laws and international conventions.
2.2. Intellectual Property Rights. Except as otherwise indicated, all copyright rights and other intellectual property rights in the Service and its contents, including any and all Mogul Retail Marks, content, data, databases, information, text, music, sound, photos, images, graphics, audio, video, software, code, technology, methods, analyses, studies, reports, and other intellectual property contained therein (“Mogul Retail IP”) are owned by or licensed to Mogul Retail, and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations.
2.3. License. Mogul Retail grants you a limited, non-exclusive, non-transferable license to access the Service for your use in accordance with these Terms of Service. Mogul Retail reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service, or any portion thereof, other than as expressly permitted.
2.4. Restrictions. You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software; use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3. THE MOGUL RETAIL SERVICE.
3.2. Technology Platform. You understand that Mogul Retail acts only as a technology platform and interface between Users and that Mogul Retail does not itself verify the qualifications of Users, nor does it evaluate or control in any ongoing manner exchanges between Users. Any opinions or statements expressed by a User are of those of the User alone, and are not to be attributed to Mogul Retail. Mogul Retail cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any User. Please use caution, common sense, and practice safety when using Mogul Retail. By using Mogul Retail, you agree to accept such risks and that Mogul Retail (and our officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of Users.
3.3. Disputes with Users. If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from 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. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Mogul Retail is not responsible for the conduct of any User. As set forth in, and without limiting, Sections 12 and 13 below, in no event shall Mogul Retail (or our affiliates and subsidiaries, or our and their respective officers, directors, employees and agents) be liable, directly or indirectly, for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the Service. You agree to take all necessary precautions in all interactions with other Users, particularly if you decide to communicate off the Service or meet in person, or if you decide to send money to another User. You understand that Mogul Retail makes no guarantees, either express or implied, regarding your interactions with individuals you meet through the Service. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other Users directly.
3.4. Independent Contractors. Mogul Retail does not endorse or recommend the services of any particular service professional or organization. It is entirely up to you to evaluate a service professional’s or organization’s qualifications, and to enter into a direct contract or otherwise reach agreement with a service professional or organization. We do not guarantee or warrant any service professional’s or organizations performance on the job or the outcome or quality of the services performed. The service professionals and organizations are each independent contractors and are not employees or agents of Mogul Retail, nor is Mogul Retail an agent of the service professionals or organizations.
3.5. No Affiliation with Brands. Mogul Retail is a private company and has no affiliation or rights with any brand or third party products on the Service. Mogul Retail disclaims ownership of any trademarks, logos or images belonging to any brand or third party products appearing on this site. The appearance of trademarks and/or logos belonging to brands, third party products or their respective companies on the Service does not constitute affiliation or endorsement by such companies of any of the services provided by Mogul Retail.
3.6. Errors, Inaccuracies and Omissions. Occasionally there may be information in the Service that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information in the Service or on any related website is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
4. YOUR ACCOUNT.
4.1. Account Registration. If you choose to register for an account, you must complete the account registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree to register only once using a single account. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (iv) choose a username for the purposes of deceiving or misleading our users and/or the Mogul Retail as to your true identity; or (v) choose a username that incorporates a solicitation.
4.2. Account Information. You are entirely responsible for maintaining the confidentiality of your account information and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. You should notify us immediately of any known or suspected unauthorized use of your username and password or any other breach of security. Mogul Retail will not be liable for any loss that you may incur as a result of someone else using your username, password, or account, either with or without your knowledge. You could be held liable for losses incurred by Mogul Retail or another party due to someone else using your username, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. Your account is unique to you and may not be transferred to any third party.
4.3. Account Security. Mogul Retail cares about the integrity and security of your account information. However, Mogul Retail cannot guarantee that unauthorized third parties will never be able to defeat the Service’s security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your account information at your own risk.
4.4. Termination, Suspension, and Restrictions. Mogul Retail may terminate or suspend your access to or ability to use the Service immediately, without prior notice or liability, for any reason or no reason, including breach of this Agreement. In particular, Mogul Retail may immediately terminate or suspend accounts that have been flagged for repeat copyright infringement. Upon termination of your access to or ability to use the Service, your right to use or access the Service will immediately cease. Mogul Retail may change, restrict access to, suspend, or discontinue any aspect of the Service at any time, including availability of any feature, database, or content. Mogul Retail may also impose limits on certain features and services or restrict your access to all or parts of the Service without notice or liability.
4.5. Survival of Terms. This Agreement’s terms and conditions that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Service shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to Mogul Retail or any third party.
5. CONDUCT. As a condition of your use of and access to the Service, you agree not to use the Service for any unlawful purpose or in any way that violates these Terms. Any use of the Service in violation of these Terms of Service may result in, among other things, termination or suspension of your account and your ability to use the Service. You may not engage in any of the following prohibited activities:
(a) Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; collecting or harvesting any personally identifiable information, including account names, from the Service; altering, modifying or creating derivative works of the Service, or any portion thereof;
(b) Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service; accessing any content or features of the Service through any technology or means other than those provided or authorized by the Service;
(c) Transmitting spam, chain letters, or other unsolicited email; using the Service for any commercial solicitation purpose or political campaigning;
(d) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Service; uploading invalid data, viruses, worms, or other software agents through the Service; bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Service or the content or features therein;
(e) Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on Service infrastructure; interfering with the proper working of the Service;
(f) Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; or
(g) Disrupting the normal flow of dialogue, causes a screen to “scroll” faster than other Users are able to type, or otherwise negatively affects other Users’ ability to engage in real time exchanges.
(h) The Service is for personal use only. Users may not use the Service or any content contained in the Service (including, but not limited to, content of other users, designs, text, graphics, images, video, information, logos, software, audio files and computer code) in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services not offered by Mogul Retail or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the Service may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Service or the Service for any purpose except with Mogul Retail’s express consent (such as for promoted profiles or other advertisements), which Mogul Retail may provide or deny in its sole discretion. Mogul Retail may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Service, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Service.
6. USER CONTENT.
6.1. User Content. As a user with a registered account, you may be able to submit content to the Service, including software code, videos, photos, images, audio, text, information (including, without limitation, Personally Identifiable Information), user comments, and any other content (collectively, “User Content”). You shall be solely responsible for your own User Content and the consequences of submitting and publishing your User Content on the Service. You further agree that you will not submit to the Service any User Content or other material that is contrary to these Terms of Service or contrary to applicable local, national, and international laws and regulations.
6.2. Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit. You further agree that User Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Service, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content without prior notice. By using the Service, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the Service any of the following:
(a) User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, foreign, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission;
(b) User Content that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory. We do not tolerate users harassing, threatening or embarrassing other users, including harassment or denigration based on age, gender, race, religion, national origin, sexual orientation or disability, marital status or veteran status, or the stalking of other users;
(c) User Content that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person or entity (including any other user), or otherwise mislead as to the origin of your User Content;
(d) User Content that is unrelated to the topic or context in which such Content is posted, or that, in the sole judgment of Mogul Retail, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Mogul Retail or its affiliates or its users to any harm or liability of any type.
6.3. User Content Disclaimers. We do not endorse any User Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. Mogul Retail takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is Mogul Retail liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Mogul Retail is not liable for any statements, representations or User Content provided by its users. Although Mogul Retail has no obligation to screen, edit or monitor any of the User Content posted to or distributed through the Service, Mogul Retail reserves the right, and has absolute discretion, to remove, screen or edit without notice any User Content posted or stored on the Service at any time and for any reason and without liability to you or any third party, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Service at your sole cost and expense. However, we also reserve the right in our sole discretion to display any User Content that is submitted to us (or to decline to remove any User Content), even if it violates this Agreement. Since not all of the areas of the Service are monitored on a “real time” basis, you may see User Content that violates this Agreement before we do. Please report such items to email@example.com.
7. COPYRIGHT POLICY.
7.1. Copyright Agent. Mogul Retail respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Our designated Copyright Agent to receive notifications of claimed infringement is:
Mogul Retail Inc.
4621 Teller Ave
Newport Beach, CA 92660
Attn: Copyright Agent
For clarity, only Digital Millennium Copyright Act (DMCA) notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
8. THIRD PARTIES.
8.1. Third Party Links. The Service may contain links to third-party advertisers, websites or services. You acknowledge and agree that Mogul Retail is not responsible or liable for: (i) the availability or accuracy of such advertisements, websites or services, or (ii) the content, products, or resources on or available from such advertisers, websites or services. Links to such advertisers, websites or services do not imply any endorsement by Mogul Retail of those websites or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or services.
8.2. Third Party Content. Through the Service, you will have the ability to access and/or use content provided by third parties. Mogul Retail cannot guarantee that such third party content will be free of material you may find objectionable or otherwise. Mogul Retail disclaims any responsibility or liability related to your access or use of any third party content.
8.3. Third Party Promotions. Some third parties may promote sweepstakes, competitions, promotions, and other similar opportunities on the Service (“Third Party Promotions”). Mogul Retail is not the sponsor or promoter of these Third Party Promotions and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any of promotion of these Third Party Promotions. If you wish to participate in any of these Third Party Promotions, you are responsible for reading and ensuring that you understand the applicable rules and any eligibility requirements and are lawfully able to participate in such Third Party Promotions in your jurisdiction.
8.4. Third Party Listings. We do not warrant and shall not be liable for the quality of any third party products, services, information, or other material obtained by you through the Service.
9. FEES AND PAYMENTS.
9.1. Fees. Mogul Retail reserves the right at any time to charge fees for access to the Service, or any portion thereof. However, in no event will you be charged for access to the Service unless we obtain your prior agreement to pay such charges. You may cancel your account at any time. You agree to pay all charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred, including all shipping and handling charges. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility. Refunds and exchanges shall be subject to our refund and exchange policies, in the applicable additional terms, as may be made available by us and updated by us from time to time.
10. MOBILE SERVICES AND APPLICATIONS.
10.1. “Mobile Services” means certain software and services that are available via a mobile device, including (i) the ability to upload data to the Service via a mobile device, (ii) the ability to use the Service from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device.
10.2. Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
10.3. Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Mogul Retail and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Mogul Retail account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Mogul Retail account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
10.4. Application. Subject to your compliance with this Agreement, Mogul Retail grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mogul Retail mobile application (“Application”) on a mobile device that you own or control and to run such copy of the Application solely to access the Service for your own personal non-commercial purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
10.5. App Stores. You acknowledge and agree that the availability of the Application and the Service is dependent on the third party from whom you received the Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that this Agreement is between you and Mogul Retail and not with the App Store. Mogul Retail, not the App Store, is solely responsible for the Service and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Application or Service. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Service. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
10.6. Accessing and Download the Application from the Apple App Store. The following applies to any Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) this Agreement is concluded between you and Mogul Retail only, and not Apple, and (ii) Mogul Retail, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Mogul Retail and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mogul Retail.
You and Mogul Retail acknowledge that, as between Mogul Retail and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Mogul Retail acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Mogul Retail and Apple, Mogul Retail, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
You and Mogul Retail acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
11. GENERAL DISCLAIMERS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MOGUL RETAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MOGUL RETAIL DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SERVICE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. MOGUL RETAIL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT OR DATA ON THE SERVICE, WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. MOGUL RETAIL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS, OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY OTHER ADVERTISING, AND MOGUL RETAIL WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF PRODUCTS OR SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
12. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL MOGUL RETAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), OR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MOGUL RETAIL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT MOGUL RETAIL SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL MOGUL RETAIL’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO USE THE SERVICE DURING THE PRIOR SIX (6) MONTHS.
13. INDEMNIFICATION. To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Mogul Retail, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service (including, without limitation, Mobile Services); (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a user or third party. Mogul Retail may assume the exclusive defense and control of any matter for which users have agreed to indemnify Mogul Retail and you agree to assist and cooperate with Mogul Retail in the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Service.
14. GOVERNING LAW AND DISPUTE RESOLUTION.
14.1. Governing Law. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles.
14.2. Mandatory Arbitration. For any dispute you have with Mogul Retail, you agree to first contact Mogul Retail and attempt to resolve the dispute informally. If Mogul Retail has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Orange County, California, in the United States. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This arbitration agreement survives the termination of this Agreement between you and Mogul Retail.
14.3. Waivers of Class Action and Trial by Jury. You and Mogul Retail both waive any right to participate in any class action involving disputes between us, and you and Mogul Retail are each waiving the right to a trial by jury. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the waiver of the right to trial by jury set forth in this Section will remain in full force and effect.
14.4. Other Remedies. Notwithstanding the foregoing, either party may bring an individual action in small claims court. Nothing in this Section precludes you from bringing issues to the attention of federal, state or local agencies. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.
14.5. Time Limitations. YOU AND MOGUL RETAIL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
16. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
17. OTHER JURISDICTIONS. By accessing or using the Service, or submitting information, you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to the terms of this Agreement, please do not use the Service. The Service is controlled and operated by Mogul Retail from the United States. We do not represent or warrant that the Service, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Service, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the availability of the Service, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
19. CONTACT INFORMATION. If you have any questions, feedback or to report a violation regarding these Terms of Service, you may email us at email@example.com or contact us by mail addressed to:
Mogul Retail Inc.
4621 Teller Ave
Newport Beach, CA 92660