Last Updated Date: February 1, 2024
PLEASE READ THIS TERMS OF USE AGREEMENT (THESE “TERMS OF USE” OR “AGREEMENT”) CAREFULLY. THE MOZI MOBILE APPLICATION (THE “APPLICATION”), AND THE FEATURES AND INFORMATION IN IT ARE CONTROLLED BY QUANTUM HUG, INC. (“MOZI” OR “WE”). THESE TERMS OF USE GOVERN THE USE OF THE APPLICATION AND APPLY TO ALL USERS USING THE APPLICATION IN ANY WAY, INCLUDING THE FEATURES THEREIN. BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MOZI, OR AS REQUIRED BY APPLICABLE LAW, HAVE RECEIVED YOUR PARENT OR GUARDIAN’S PERMISSION TO ENTER INTO THIS AGREEMENT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE APPLICATION.
PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST MOZI ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
As used in these Terms of Use, the following definitions apply:
The Application is designed to enable App Users to find and discover information about their friends, acquaintances, or other contacts stored within their device’s mobile contacts who also use the Application (“App Contacts”) to develop and deepen their existing relationships. Within the Application, App Users, at their option, can: (a) submit information about themselves, and share such information via the Application with App Contacts whom they choose, (b) view such information about their App Contacts, and (c) use preset queries to discover information about their App Contacts (e.g., location, birth month and day). You can add App Contacts by, among other ways, (i) syncing your mobile phonebook contacts with the Application to see which of your contacts are using the Application; (ii) scanning a QR code within another user’s Application;(c) having someone scan a QR code within your Application; and (iv) sending your contacts an invitation to download the Application.
The Application and the information and content available therein are protected by copyright laws throughout the world. Subject to your compliance with this Agreement, Mozi grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Certain components or libraries included in or bundled with the Application constitute open source software and are licensed under open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this Section 1.3, solely with respect to those components or libraries that are licensed under such open source licenses. 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 (a) on an Apple-branded product that runs on iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store, you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
You understand that Mozi may make updates to the Application after you download it. These updates will be made available to App Users from the third party from which you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You will have the ability, at your option, to download any updates to the Application that we make freely available through such App Stores. We do not require you to install any updates in order for you to continue using the Application after we make such updates available. This is because we do not retain any information about you when you download the Application. Therefore, we will not know whether you have installed any such updates. Accordingly, you acknowledge and agree that if you elect NOT to install available updates, the Application may not operate in accordance with publicly available documentation regarding the features and functionality of the Application, which documentation may be updated after the time you originally downloaded it. In addition, you may need to update third-party software from time to time in order to use the Application. Any updates issued by Mozi and installed by you shall be deemed the Application and shall be governed by this Agreement or any subsequent end user license agreement accompanying the update.
Mozi has no responsibility or liability for the deletion or accuracy of User Data, or the failure to store, transmit or receive transmission of any User Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Application.
Except with respect to your User Data, you agree that Mozi and its suppliers own all rights, title and interest in and to the Application. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application. You hereby grant to Mozi a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise use any and all of your User Data, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Application, any other Mozi products or services, or Mozi’s business.
Mozi, the Mozi “M” logo, and all related graphics, logos, service marks and trade names used on or in connection with the Application or in connection therewith are the trademarks of Mozi and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Application are the property of their respective owners.
To access certain features of the Application, you may be required to register an account on the Application (“Account”). App Users must be at least 13 years of age to register an Account and use the Application. By creating an Account, you represent that you are at least 13 years of age, and, to the extent required by law, you have the permission of a parent or guardian to create an Account and use the Application.
In registering an Account, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (“Registration Data”), and (ii) maintain and promptly update Registration Data to keep it true, accurate, current, and complete.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Mozi. Furthermore, you are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Mozi immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Mozi has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Mozi has the right to suspend or terminate your Account and refuse any and all current or future use of the Application (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account at any given time. Mozi reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Application if you have been previously removed by Mozi, or if you have been previously banned from using the Application.
You must provide all equipment and software necessary to download and use the Application and to connect to any third party services or sites, including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Application.
You acknowledge that the Application may collect personal information about you (through your choice to store information in the Application or through automatic technology tools), including your Location Data. You acknowledge that the Application may provide you with opportunities to share personal information, including your Location Data, through the Application or otherwise with others. All personal information collected in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, or providing personal information to or through this Application, you consent to all actions taken by us with respect to your personal information in compliance with the Privacy Policy. We recommend that you make your choices regarding sharing your personal information, through the Application or otherwise, carefully, and we may provide you with certain selections in the “Settings” portion of the Application to provide you with certain control over the sharing of such information. We are not liable for any consequences that may result because you have released or shared information, through the Application or otherwise, with a third party.
As further described within the Application settings, App Users may have the right to (i) block or delete another App User to restrict such App User from viewing your Account and other User Data, including any personal information; and (ii) limit or restrict certain of your User Data that is available to individual App Users. Such functionality is subject to change in Mozi’s sole discretion. We are not liable for any consequences that may result because you have failed to select the appropriate settings with respect to any of your User Data. Further, you acknowledge and agree that any application of the settings you select only apply on a going-forward basis, and does not affect any App Users’ ability to view such restricted information prior to the time that you place such restriction in the Application through your Application settings.
Each App User is solely responsible for all User Data uploaded by such App User and all such other content, including photos (“User Content”) uploaded or submitted by such App User, in each case, to or through the Application. You assume all risks associated with your use and access of User Data and User Content through the Application, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your own User Data or User Content that personally identified you or any third party. We do not claim ownership of any User Content or User Data. As between you and use, you own all rights to your User Data and User content made available by you through the Application. However, you hereby grant us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully paid-up license (sublicensable through multiple tiers) to use, distribute, syndicate, license, reproduce, modify, adapt, publish, translate, publicly perform, create derivative works of, publicly display and otherwise exploit your User Data or User Content (in whole or in part) for purposes of providing the Services to you and other App Users, provided, however, that our exercise of our rights pursuant to the foregoing are consistent with our Privacy Policy.
We reserve the right (but have no obligation) to review any User Data and User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate Section 5 or any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Data or User Content, terminating your Account, and/or reporting you to law enforcement authorities.
All User Data and User Content provided on or through the Application are intended for general information, general discussion, and entertainment purposes only. Do not construe that such User Data or User content is either endorsed or verified by us.
As a condition of use, you agree not to use the Application for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Application or any portion of the Application; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Application or any other portion of the Application (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Mozi’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Application except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Application (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Application for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Application; (vii) impersonate any person or entity, including any employee or representative of Mozi; (viii) interfere with or attempts to interfere with the proper functioning of the Application or use the Application in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Application, introducing viruses, worms, or similar harmful code into the Application, or interfering or attempting to interfere with use of the Application by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Application; or (ix) take any action, post, publish, or otherwise make available any User Data or User Content on or through the Application that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Mozi’s prior written consent; (D) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or other intellectual property or proprietary right; (E) is intended to stalk, harass, intimidate, or otherwise bother any individual, including any other App User, (F) that is in violation of (or facilitates any activity that is in violation of) any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable (as determined by us in our sole discretion), or (G) in any manner would violate the privacy or publicity rights of any individual. Furthermore, the User Data or User Content in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Mozi in its sole discretion. You may not post, publish, or otherwise make available a photograph of another person without that person’s permission. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Application terminates the licenses granted by Mozi pursuant to this Agreement.
If you provide Mozi with any ideas, suggestions, documents, and/or proposals (“Feedback”) via email or another means, you do so at your own risk and you acknowledge and agree that Mozi has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Mozi a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Application, any other Mozi products or services, or Mozi’s business.
You acknowledge and agree that the availability of the Application is dependent on the App Store from which you received the Application license. You acknowledge that this Agreement is between you and Mozi and not with the App Store. Mozi, not the App Store, is solely responsible for the Application, including the content Mozi makes available therein, and the maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). To use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of the agreement imposed by the applicable App Store when using the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
You agree to indemnify and hold Mozi, its parents, subsidiaries, affiliates, officers, employees, volunteers, agents, partners, suppliers, and direct and indirect licensors, including licensors of applicable open source software, and any collaborators or licensors of any of the foregoing (each, a “Mozi Party” and collectively, the “Mozi Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use the Application; (b) your violation of this Agreement, including Section 5 above); (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Mozi reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mozi in asserting any available defenses. This provision does not require you to indemnify any of the Mozi Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application provided hereunder. You agree that the provisions in this section will survive any termination of this Agreement and/or your use of or access to the Application.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK, AND THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE MOZI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE APPLICATION.
In making the Application available for download, Mozi’s goal is to provide individuals with a useful tool for connecting with family, friends, acquaintances, and other personal contacts. However, the utility of the Application’s features is dependent upon a number of factors that are outside the control of Mozi, such as the accuracy and completeness of User Data, as well as factors used to create Location Data (such as the reliability of GPS sensors, whether individuals are carrying their mobile devices, and the accuracy, reliability, availability, effectiveness or correct use of individual’s mobile devices and GPS sensors). Your User Data may be unavailable, inaccurate or incomplete, and we cannot make any guarantees regarding the security, privacy, storage, or transmission of such data. Use of the Application should not replace your good judgment and common sense.
YOU ACKNOWLEDGE AND AGREE THAT MOZI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MOZI PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF ANY OTHER APP USER WITH WHOM YOU CHOOSE TO INTERACT IN CONNECTION WITH YOUR USE OF THE APPLICATION (WHETHER VIA THE APPLICATION OR IN PERSON), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE MOZI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT THE MOZI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE APPLICATION OR ANY OF ITS ADVERTISED FEATURES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR USER DATA; OR (3) ANY OTHER MATTER RELATED TO THE APPLICATION, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MOZI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A MOZI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A MOZI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE MOZI PARTIES’ AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF USE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY U.S. DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS OF USE.
EXCEPT FOR MOZI’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN MOZI’S PRIVACY POLICY, NO MOZI PARTY ASSUMES ANY RESPONSIBILITY FOR THE SECURITY, TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE OR TRANSMIT ANY USER DATA OR USER CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOZI AND YOU.
If Mozi becomes aware of any possible violations by you of this Agreement, Mozi reserves the right to investigate such violations. If, as a result of the investigation, Mozi believes that criminal activity has occurred, Mozi reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Mozi is entitled, except to the extent prohibited by applicable law, to disclose any information or materials you provide to Mozi in connection with your use of the Application, to (a) comply with applicable laws, legal process or governmental request; (b) enforce these Terms of Use, (c) respond to your requests for customer service, or (d) protect the rights, property or personal safety of Mozi or the public, and all enforcement or other government officials, as Mozi, in its sole discretion believes to be necessary or appropriate.
This Agreement commences on the date when you accept them (as described in the preamble above) (the “Effective Date”) and remain in full force and effect while you use the Application, unless terminated earlier in accordance with this Agreement.
Notwithstanding the foregoing, you hereby acknowledge and agree that this Agreement commenced on the earlier to occur of (a) the date you first used the Application or (b) the date you accepted this Agreement and will remain in full force and effect while you use the Application, unless earlier terminated in accordance with this Agreement.
If you want to terminate this Agreement, you may do so by deleting your Mozi account from within the App’s Settings.
Termination of this Agreement requires you to delete the Application and cease all use of it. All provisions of this Agreement which by their nature should survive, shall survive termination, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The Application may be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Mozi intends to announce such service or content in your country. The Application is controlled and offered by Mozi from its facilities in the United States of America. Mozi makes no representations that the Application is appropriate or available for use in other locations. Those who access or use the Application from other countries do so at their own volition and are responsible for compliance with local law.
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Mozi and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Subject to the terms of this Arbitration Agreement, you and Mozi agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Application, any communications you receive, any products sold or distributed through the Application or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the Effective Date (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Mozi may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Mozi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
There might be instances when a Dispute arises between you and Mozi. If that occurs, Mozi is committed to working with you to reach a reasonable resolution. You and Mozi agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Mozi therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), the parties will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Mozi that you intend to initiate an Informal Dispute Resolution Conference should be sent by e-mail to info@mozi.app. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
YOU AND MOZI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Mozi are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
YOU AND MOZI AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 14.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 14.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Mozi agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Mozi from participating in a class-wide settlement of claims.
This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Mozi agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the e-mail address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and e-mail address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Mozi otherwise agree, or the Batch Arbitration process discussed in Section 14.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Mozi agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 14.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 14.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 14.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 14.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 14.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 14.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Mozi need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
To increase the efficiency of administration and resolution of arbitrations, you and Mozi agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Mozi by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Mozi.
You and Mozi agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: info@mozi.app within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in Section 14.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Mozi as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Mozi makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Mozi at info@mozi.app, your continued use of the Application, including the acceptance of products and services offered in the Application following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Application, any communications you receive, any products sold or distributed through the Application or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Mozi will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
The communications between you and Mozi may take place via electronic means, whether you send Mozi e-mails, or whether Mozi posts notices in the Application or through updates made to the Application in accordance with these Terms of Use or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Mozi in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mozi provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Mozi’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Mozi shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
If you have any questions, complaints or claims with respect to the Application, please contact us at: info@mozi.app
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Mozi agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
THESE TERMS OF USE AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
You may not use, export, import, or transfer the Application except as authorized by U.S. law, the laws of the jurisdiction in which you accessed any Mozi property, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Application, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Mozi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Mozi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge that the Mozi Parties are third party beneficiaries of Sections 8, 9 and 10 of these Terms of Use and that they will have the right to enforce those provisions.
In accordance with California Civil Code §1789.3, you may report complaints to the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.