Mobile Spinach Terms & Conditions
Last Updated: February 15, 2012
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 1710 South Amphlett Blvd., Suite 200, San Mateo, CA 94402 (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 purchase of discount vouchers redeemable at participating merchants (“Vouchers”), 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/about/contact/. 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.
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.
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.
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 must provide your e-mail address (“Email”). You must keep your Password confidential and not disclose them 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.
Consent to Electronic Communications.
By using the Mobile Spinach Service, which is provided electronically, you consent to contracting electronically and to Mobile Spinach providing you with information electronically via this website or email. Read this notice carefully. You can print a copy for your records.
By consenting to contract and receive information electronically at this website and email, you will receive the following information and disclosures electronically:
the Mobile Spinach Terms and Conditions, including legal disclosures,
any future changes to the Mobile Spinach Terms and Conditions,
transaction history information, and
any other notices, legal communications, or disclosures.
To receive this information electronically, and access and retain any disclosures received, you will need a computer or mobile device with compatible web browsing capability, and the ability to receive and read email.
By proceeding with registration to use the Service:
you agree to receive information and disclosures electronically on this website and email and confirm that you will download or print any disclosures for your records;
you agree the computer you are using satisfies the requirements described above;
you acknowledge that you can access information that is provided electronically at this website or email;
you are authorizing the delivery of the disclosures regarding the Service electronically on this website and via email and providing your consent to contract electronically and receive electronic communications pursuant to the Electronic Signatures in Global and National Commerce Act and intend that this statute apply to the fullest extent possible; and
you agree to receive email regarding the Service.
You can withdraw your consent by contacting us through http://www.mobilespinach.com/about/contact/. 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/about/contact/. To update your contact information with Mobile Spinach, contact us through http://www.mobilespinach.com/about/contact/.
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
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 OTHER 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.
Mobile Spinach may offer certain services including premium services for a fee, and you agree to pay, any such fees in accordance with the applicable fee schedule in effect at the time you request such services or as may be in effect from time to time. Click here to access the Mobile Spinach fee schedule.
In addition to the fees that Mobile Spinach charges, you may also be required to pay fees and charges to others in connection with your use of the Service. For example, your mobile telephone company may impose charges for use of your Device in connection with Mobile Spinach.
Except and solely to the extent provided in Section entitled “Refunds”, below, all sales and charges are final and Mobile Spinach does not offer refunds of any kind.
The following terms apply to your purchase and redemption of Vouchers through the Service:
“Vouchers” are promotional vouchers that may be purchased from participating merchants (“Merchants”) through the Service, that can be redeemed in exchange a certain value (the “Voucher Nominal Value”) of goods and services at a discount from the Voucher Nominal Value (the price paid, the “Voucher Cost”). For the avoidance of doubt, the “cash value” of the Voucher is the Voucher Cost, not the Voucher Nominal Value, and the difference between the Voucher Cost and the Voucher Nominal Value is a promotion offered to you by the Merchant, subject to these terms. Each Voucher has its own window of availability for purchase and windows of availability may vary from Merchant to Merchant, Voucher to Voucher, and for a given Voucher, from publisher to publisher (i.e. the same Voucher offer may be available for purchase for a longer window on one third party publisher site than another).
Your transaction is treated as a firm and binding offer to purchase the Voucher on the stated terms, subject to acceptance by the Merchant. Upon acceptance of the terms of the Voucher by the Merchant, the Merchant, not Mobile Spinach, is the seller of the Voucher and the goods and services and is solely responsible for redeeming any Voucher you purchase.
You will not be charged for a Voucher until the Merchant accepts the offer. You agree and acknowledge that Mobile Spinach may, in its discretion, aggregate your accepted purchase offers over periods not to exceed seven (7) days, and process all charges for the relevant period to your payment instrument in a single transaction.
You are limited to purchases of a maximum of $1000 USD in Voucher Nominal Value per day.
Certain Vouchers have additional terms and conditions attached, whether expressly (as where a Voucher does not activate until after a certain date and time), or impliedly (as where the Voucher is for purchases of alcoholic beverages, in which case you must be of legal age to purchase alcohol in order to redeem the Voucher). By purchasing a Voucher, you agree to all express and implied terms and conditions on which the Voucher is offered.
Vouchers are personal, non-transferrable, and cannot be bought, sold, traded, bartered, leased, loaned, or otherwise exercised or redeemed by or on behalf of any third party. Notwithstanding the foregoing, the Service may allow you to purchase a Voucher directly on behalf of another person.
Purchases and redemption of Vouchers may have additional statutory limitations, such as limitations on whether Vouchers may be redeemed for purchases of alcoholic beverages, and if so, what amount or proportion of the Voucher Nominal Value can be redeemed for alcoholic beverages. The application and compliance with applicable laws and regulations is solely the responsibility of Merchant.
Unless otherwise expressly authorized by the issuing Merchant, Voucher Nominal Value cannot be applied towards taxes, tips, or prior balances, and may Vouchers may not be redeemed in combination with other Vouchers, or any other sales, coupons, promotions, or other similar offers.
Purchase and redemption of Vouchers is void where prohibited by law.
VOUCHER REDEMPTION TRANSACTIONS ARE DIRECTLY BETWEEN YOU AND THE ISSUING MERCHANT, AND MOBILE SPINACH IS NOT A PARTY TO SUCH TRANSACTIONS, NOR DOES MOBILE SPINACH MAKE ANY REPRESENTATIONS OR WARRANTIES TO YOU REGARDING MERCHANTS’ PRODUCTS OR SERVICES.
Partially Redeemed Vouchers.
In the event that you partially redeem a Voucher at the issuing Merchant, the running balance of the Voucher Nominal Value will be reduced in accordance with the amount redeemed. For the purposes of refunds and expirations, the running balance of Voucher Cost will be reduced by a partial redemption proportionally. For example, if you purchase a Voucher with a Voucher Cost of $20 and a Voucher Nominal Value of $50, and you redeem $10 worth of goods and services at the issuing Merchant, your Voucher will be deemed to have been reduced to a Voucher with a Voucher Nominal Value of $40 and a Voucher Cost of $16.
Unused Vouchers may be returned for any reason for a full refund of the Voucher Cost, or in the case of partially redeemed Vouchers, a refund of the remaining balance of the Voucher Cost. Without limiting the generality of the foregoing, in the event that the issuing Merchant refuses to honor an unused Voucher in accordance with its terms and applicable law, please notify Mobile Spinach promptly so that we can refund to you the full amount of the remaining unused balance of Voucher Cost. Fully redeemed Vouchers may not be returned for a refund. If you have any issues redeeming a Voucher, or obtaining a refund, please contact Mobile Spinach at firstname.lastname@example.org.
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.
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.
BY USING THE MOBILE SPINACH PLATFORM YOU AGREE NOT TO:
use the Service for any purposes other than to purchase and redeem Vouchers and/or to otherwise 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 other third 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, including without limitation to modify, tamper with, or otherwise alter any Voucher;
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;
access the Service from any country other than the United States;
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;
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.
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 ID, PIN, Password, or any credit, debit or charge card number, as applicable), then you agree to immediately notify Mobile Spinach.
Third Party Sites, Products and Services; Links.
The Service may include links or references to other web sites or services (or be linked from, referenced on, or embedded or incorporated into other web sites or services), including those of participating Merchants, 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.
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.
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.
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 applicable laws or regulations, 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.
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, MERCHANTS, 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. MOBILE SPINACH DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE GOODS OR SERVICES OF ANY PARTICIPATING MERCHANT, OR THAT YOU MAY OTHERWISE USE, ACCESS, PURCHASE, OR CONSUME IN CONNECTION WITH A REDEMPTION OF A VOUCHER.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE (INCLUDING 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.
Limitation of Liability and Damages.
IN NO EVENT WILL MOBILE SPINACH OR ITS CONTRACTORS, AGENTS, LICENSORS, MERCHANTS, 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, (IV) ANY OTHER INTERACTIONS WITH ANOTHER MOBILE SPINACH USER IN CONNECTION WITH THE SERVICE, OR (V) ANY INTERACTION WITH A MERCHANT, INCLUDING THE USE, ACCESS, OR CONSUMPTION OF MERCHANTS’ GOODS OR SERVICES, 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, MERCHATS’ 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, (IV) ANY OTHER INTERACTIONS WITH MOBILE SPINACH OR ANOTHER USER OF THE SERVICE, OR (V) ANY INTERACTION WITH A MERCHANT, INCLUDING THE USE, ACCESS, OR CONSUMPTION OF MERCHANTS’ GOODS OR SERVICES, HOWEVER CAUSED AND WHETHER ARISING IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE, EXCEED THE GREATER OF (I) THE AMOUNT PAID BY YOU IN THE MONTH PRECEEDING THE CLAIM, IF ANY, FOR USING THE PORTION OF THE SERVICE GIVING RISE TO THE CAUSE OF ACTION OR (II) ONE HUNDRED DOLLARS ($100).
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.
Modification of this Agreement.
Mobile Spinach reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time by posting the amended Agreement. Please check this Agreement periodically for changes. In the event that such modifications materially alter your rights or obligations, Mobile Spinach will use commercially reasonable efforts to notify you directly of the change, such as through the use of a pop-up message in the Service, or by sending an email to the address you provide upon registration. Your continued use of the Service after the changes become effective constitutes your binding acceptance of such changes. Except as stated elsewhere, such amended Agreement will automatically be effective upon the earlier of (a) Your use of the Service with actual notice of the new terms, or (b) thirty (30) days after they are initially posted through the Service; provided however, that any dispute that arises under this Agreement shall be resolved according to the version of the terms that were in place at the time the dispute arose; and further provided that the terms of a Voucher cannot be changed after a purchase of such Voucher is consummated.
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.
1710 South Amphlett Blvd., Suite 200
San Mateo, CA 94402
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.
This Agreement be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Mobile Spinach agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, CA.
Generally. In the interest of resolving disputes between you and Mobile Spinach in the most expedient and cost effective manner, you and Mobile Spinach agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. You understand and agree that, by entering into this Agreement, you and Mobile Spinach are each waiving the right to a trial by jury or to participate in a class action.
Exceptions. Notwithstanding the paragraph entitled “Generally”, above, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Arbitrator. Any arbitration between you and Mobile Spinach will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Mobile Spinach.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Mobile Spinach's address for Notice is: Mobile Spinach Inc.; 1710 South Amphlett Blvd., Suite 200; San Mateo, CA 94402. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Mobile Spinach may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Mobile Spinach shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Mobile Spinach shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Mobile Spinach in settlement of the dispute prior to the arbitrator’s award.
Fees. In the event that you commence arbitration in accordance with this Agreement, Mobile Spinach will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, CA, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Mobile Spinach for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No class actions. YOU AND MOBILE SPINACH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Mobile Spinach agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. In the event that Mobile Spinach makes any future change to this arbitration provision (other than a change to the Mobile Spinach's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Mobile Spinach's address for Notice, in which case your account with Mobile Spinach shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
Enforceability. If the paragraph entitled “No class actions” of this “Arbitration” provision, or the entirety of this entire “Arbitration” provision is found to be unenforceable, then the entirety of this entire “Arbitration” provision shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in “Governing Law”, above shall govern any action arising out of or related to this Agreement.
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.
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.
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.
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.
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.